{ "id": 8563102, "name": "JOHN M. DUNN, JR. and wife, OLLIE M. DUNN, MR. AND MRS. C. H. BLACK, AND MR. AND MRS. H. C. KEITH, Petitioners v. THE CITY OF CHARLOTTE, NORTH CAROLINA, Respondent; RONALD K. BROWN and wife, LINDA LEE BROWN, and LARRY E. JOHNSON and wife, MARY L. JOHNSON, Petitioners v. THE CITY OF CHARLOTTE, NORTH CAROLINA, Respondent; JOHN A. DeGROOT and wife, OPHELIA H. DeGROOT, and A. KEITH WOODBERY and wife, Petitioners v. THE CITY OF CHARLOTTE, Respondent", "name_abbreviation": "Dunn v. City of Charlotte", "decision_date": "1974-01-25", "docket_number": "No. 76", "first_page": "542", "last_page": "548", "citations": [ { "type": "official", "cite": "284 N.C. 542" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "117 S.E. 2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "800" } ], "opinion_index": 0 }, { "cite": "253 N.C. 637", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626680 ], "year": 1961, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0637-01" ] }, { "cite": "141 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "264 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572632 ], "year": 1965, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0277-01" ] }, { "cite": "96 S.E. 2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "245 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612776 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/245/0432-01" ] }, { "cite": "58 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "353" } ], "opinion_index": 0 }, { "cite": "231 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631162 ], "year": 1950, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0577-01" ] }, { "cite": "171 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0123-01" ] }, { "cite": "254 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "year": 1970, "opinion_index": 0 }, { "cite": "122 S.E. 2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "686-87" } ], "opinion_index": 0 }, { "cite": "255 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571923 ], "year": 1961, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0619-01" ] }, { "cite": "180 S.E. 2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "855" }, { "page": "855" } ], "opinion_index": 0 }, { "cite": "278 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561245 ], "year": 1971, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0641-01" ] } ], "analysis": { "cardinality": 602, "char_count": 14692, "ocr_confidence": 0.59, "pagerank": { "raw": 2.289273354654555e-07, "percentile": 0.7860438967677266 }, "sha256": "c7470863e4da9ed98397d8340f820ff8f54fab4d3d4f011bf5ec76619c911942", "simhash": "1:8788dd8ed66b8900", "word_count": 2417 }, "last_updated": "2023-07-14T18:23:00.028129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN M. DUNN, JR. and wife, OLLIE M. DUNN, MR. AND MRS. C. H. BLACK, AND MR. AND MRS. H. C. KEITH, Petitioners v. THE CITY OF CHARLOTTE, NORTH CAROLINA, Respondent RONALD K. BROWN and wife, LINDA LEE BROWN, and LARRY E. JOHNSON and wife, MARY L. JOHNSON, Petitioners v. THE CITY OF CHARLOTTE, NORTH CAROLINA, Respondent JOHN A. DeGROOT and wife, OPHELIA H. DeGROOT, and A. KEITH WOODBERY and wife, Petitioners v. THE CITY OF CHARLOTTE, Respondent" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nThe authority of the Council to extend the corporate limits of Charlotte is conferred by G.S. 160-453.14. The procedure is prescribed by G.S. 160-453.17.\nIn each case, the court properly concluded that the record of the annexation proceedings on its face showed substantial compliance with every essential element of the applicable statutes. Therefore, the burden was upon petitioners, who appealed from the annexation ordinance, to show by competent evidence that the City in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights. In re Annexation Ordinance, 278 N.C. 641, 647, 180 S.E. 2d 851, 855 (1971). Compare Huntley v. Potter, 255 N.C. 619, 628, 122 S.E. 2d 681, 686-87 (1961), which related specifically to annexation proceedings under G.S. 160-453.1 et seq. by municipalities of less than 5,000.\n\u201cIn reviewing the procedure followed by a municipal governing board in an annexation proceeding the question whether the municipality is then providing services pursuant to the plan of annexation is not before the court. Obviously, extension of services into an annexed area in accordance with the promulgated plan is not a condition precedent to annexation.\u201d In re Annexation Ordinance, supra, at 647, 180 S.E. 2d at 855. (Our italics.)\nPetitioners\u2019 assignments of error do not comply with Rules 19(3) and 21 of the Rules of Practice in the Supreme Court, 254 N.C. 783 et seq., as interpreted by this Court. See State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970), and cases cited; Burnsville v. Boone, 231 N.C. 577, 579, 58 S.E. 2d 351, 353 (1950), and cases there cited; Putnam v. Publication, 245 N.C. 432, 96 S.E. 2d 445 (1957); State v. Hamilton, 264 N.C. 277, 288, 141 S.E. 2d 506, 514 (1965), and cases cited. However, we have elected to discuss what appear to be petitioners\u2019 major contentions.\nI.\nG.S. 160-453.15(3) provides that the report of plans for the extension of services to the area proposed to be annexed shall include the following:\n\u201cb. Provide for extension of major trunk water mains and sewer outfall lines into the area to be annexed so that when such lines are constructed, property owners in the area to be annexed will be able to secure public water and sewer service, according to the policies in effect in such municipality, for extending water and sewer lines to individual lots or subdivisions.\n\u201ce. If extension of major trunk water mains and sewer outfall lines into the area to be annexed is necessary, set forth a proposed timetable for construction of such mains and outfalls as soon as possible following the effective date of annexation. In any event, the plans shall call for contracts to be let and construction to begin within 12 months following the effective date of annexation.\u201d\nThe plans provide for the construction of major trunk water mains and sewer outfall lines to serve the areas, proposed to be annexed and for contracts to be let and construction to begin within one year from the effective annexation date. However, the plans did not otherwise set forth \u201ca proposed time-, table.\u201d The City\u2019s \u201cproposed timetable\u201d was provided in discovery proceedings. Even so, petitioners contend the annexation proceeding is defective because of the City\u2019s failure to include the timetable in the report of its plans for the extension of services to the areas proposed to be annexed. Suffice to say, there was ample basis for the court\u2019s finding \u201cthat the substantive rights of the petitioners have not been materially prejudiced by the absence from the Plan of a proposed timetable for the construction of major trunk water mains and sewer outfall lines that are to be extended into the area.\u201d See In re Annexation Ordinances, 253 N.C. 637, 644, 117 S.E. 2d 795, 800 (1961).\nII.\nG.S. 160-453.15(3) provides that the report of plans for the extension of services to the area proposed to be annexed shall include the following:\n\u201ca. Provide for extending police protection, fire protection, garbage 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. If a.water distribution system is not available in the area to be annexed, the plans must call for reasonably effective fire protection services until such time as waterlines are made available in such area under existing municipal policies for the extension of waterlines.\u201d\nPetitioners challenge the sufficiency of the provisions in the plans for the extension of fire protection services to the areas to be annexed.\nEach plan sets forth the City\u2019s plans to provide reasonable fire protection services from the date of annexation to the time when fire hydrants will be installed in the annexation area. Each plan involves the purchase and use of water tankers until fire hydrants can be installed and provision, made for fire protection services comparable to those provided property within the existing city limits. There was ample basis for the court\u2019s finding that the plan for fire protection is adequate and will provide reasonably effective fire protection services to the area pending the completion of the City\u2019s effort to provide more complete fire protection.\nh-t HH HH\nG.S. 160-453.15(3) provides that the report of plans for the extension of services to the area proposed to be annexed shall include the following:\n\u201cd. Set forth the method under which the municipality plans to finance extension of services into the area to be annexed.\u201d\nEach plan sets forth the City\u2019s proposals with reference to the financing of the extension of services into the area to be annexed. Petitioners attack these plans because the City contemplates .the use of certain federal funds in connection with such financing. No sound reason appears why such funds may not be used for these purposes. Nor does it appear the unavailability of these funds in whole or in part would prevent the City from extending its services into the annexed areas from its own general revenues. There was ample basis for the court\u2019s findings that the method set forth in the plans to finance extension of the services into the areas to be annexed constituted compliance with G.S. 160-453.15 (3) d.\nIV.\nPetitioners contend the ordinances are defective because the services to be provided the areas being annexed are not set forth in the ordinances. We note that the petitions did not allege the ordinances were defective in this respect. Nor does it appear that any of the exceptions referred to in petitioners\u2019 assignments of error relate to this subject.\nNothing in the statute supports this contention. Nor is there support for petitioners\u2019 further contention that, absent incorporation in the ordinance, uncertainty exists as to the services the City is obligated to provide the area to be annexed. G.S. 160-453.17(e) (2) provides that \u201c[a] statement of the intent of the municipality to provide services to the area being annexed as set forth in the report required by G.S. 160-453.15\u201d shall be included in the ordinance. Each ordinance provides: \u201cSec. 3. That it is the purpose and intent of the City of Charlotte to provide services to the area being annexed under this ordinance, as set forth in the report of plans for services approved by the City Council on the 6th day of November, \u25a0 1972, and filed in the Office of the Clerk for public inspection.\u201d Thus, each ordinance identifies specifically the services to be rendered the area to be annexed. These are the plans which petitioners specifically challenged in their petition.\nWhether the impact of annexation on any petitioner is greater or less than on any other owner of property in the area to be annexed does not appear.\nG.S. 160-453.17 (h) makes available to any person owning property in an annexed area a remedy by mandamus in the event the municipality has not followed through on its service plans adopted under the provisions of G.S. 160-453.15(3) and 160-453.17 (e).\nThe statutory references herein are to sections of Part 3, Art. 36, Ch. 160, Volume 3D, Replacement 1972, of the General Statutes. We note that Parts 2 and 3 of Article 36, of Chapter 160, of the General Statutes as codified in Volume 3D, Replacement 1972, were recodified by Chapter 426 of the Session Laws of 1973 and now constitute Parts 2 and 3 of Article 4A of Chapter 160A.\nThe consolidation of two or more petitions for review in a single hearing referred to in G.S. 160-453.18 (d) refers to the consolidation of two or more petitions which involve a single annexation area and ordinance. However, all parties have treated the three petitions as if properly consolidated for hearing in the court below. Suffice to say, no error prejudicial to petitioners results from such consolidation. .\nPetitioners having failed to show prejudicial error, each of the three judgments is affirmed.\nAffirmed.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Casey & Daly by Hugh G. Casey, Jr., for petitioner appellants.", "Henry W. Underhill, Jr., H. Michael Boyd and W. A. Watts for respondent appellee." ], "corrections": "", "head_matter": "JOHN M. DUNN, JR. and wife, OLLIE M. DUNN, MR. AND MRS. C. H. BLACK, AND MR. AND MRS. H. C. KEITH, Petitioners v. THE CITY OF CHARLOTTE, NORTH CAROLINA, Respondent RONALD K. BROWN and wife, LINDA LEE BROWN, and LARRY E. JOHNSON and wife, MARY L. JOHNSON, Petitioners v. THE CITY OF CHARLOTTE, NORTH CAROLINA, Respondent JOHN A. DeGROOT and wife, OPHELIA H. DeGROOT, and A. KEITH WOODBERY and wife, Petitioners v. THE CITY OF CHARLOTTE, Respondent\nNo. 76\n(Filed 25 January 1974)\n1. Municipal Corporations \u00a7 2 \u2014 appeal from annexation ordinance \u2014 burden of proof\nWhere the record of annexation proceedings on its face showed substantial compliance with every essential provision of the applicable statutes, the burden was upon petitioners who appealed from the annexation ordinance to show by competent evidence that the city in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights.\n2. Municipal Corporations \u00a7 2 \u2014 annexation \u2014 proposed timetable for extension of services\nThere was ample basis for the trial court\u2019s finding that the substantive rights of the petitioners have not been prejudiced by the absence from the city\u2019s plan for the extension of services into an area to be annexed of a \u201cproposed timetable\u201d for construction of major trunk water mains and sewer outfall lines into the area, the proposed timetable having been provided in discovery proceedings. G.S. 160-453.15 (3 )c.\n3. Municipal Corporations \u00a7 2 \u2014 annexation \u2014 fire protection \u2014 use of water tankers\nA city\u2019s plan to purchase and use water tankers for fire protection in an area to be annexed until fire hydrants can be installed met the requirements of G.S. 160-453.15 (3) a.\n4. Municipal Corporations \u00a7 2 \u2014 annexation \u2014 financing of extension of services \u2014 use of federal funds\nA city\u2019s plan to finance the extension of services into an area to be annexed, including the contemplated use of federal funds, complied with G.S. 160-453.15(3)d.\n5. Municipal Corporations \u00a7 2 \u2014 annexation \u2014 services not set forth in ordinance \u2014 reference to report of plans for services\nAnnexation ordinances are not defective because services to be provided the areas being annexed are not set forth in the ordinances, it being sufficient that each ordinance contains a statement that the city intends to provide the services as set forth in the report of plans for services for the area to be annexed. G.S. 160-453.17 (e) (2).\nAppeal by petitioners from Martin, Special J., 12 February 1973 Session of the Superior Court of Mecklenburg County, certified pursuant to G.S. 7A-31 for initial appellate review by the Supreme Court.\nOn 11 December 1972, the Charlotte City Council (Council) , the governing board of the City of Charlotte (City), under authority of N.C. Gen. Stats. Ch. 160, Art. 36, Part 3, being G.S. 160-453.13 et seq., adopted three annexation ordinances identified as 689-X, 690-X, and 691-X.\nPrior to the adoption of the ordinances on 11 December 1972 the City had complied with the procedural requirements of G.S. 160-453.17(a), (b), (c) and (d). On 24 October 1972 the Council declared its intent to consider annexation\u2019 of the three areas and set the time and place for a public hearing on the question of annexation. Plans setting forth services to be provided each of the three annexation areas were prepared. G.S. 160-453.15. These plans were approved by the Council on 6 November 1972 and filed in the office of the City Clerk and made available for public inspection. The public hearing was held 1 December 1972, after due advertisement. Features of the plan were explained and interested persons were given an opportunity to be heard. Each ordinance recites that the Council had taken into consideration the statements presented at such public hearing. Each contains the findings prescribed by G.S. 160-453.17 (e)(1).\nPetitioners John M. Dunn, Jr., and wife, Ollie M. Dunn,\u2019 Mr. and Mrs. C. H. Black, and Mr. and Mrs. H. C. Keith own real property in the Statesville Road-Derita Road Annexation Area, the subject of Ordinance 691-X. Hereafter the word \u201cDunn\u201d will refer to all of these petitioners.\nPetitioners Ronald K. Brown and wife, Linda Lee Brown, and Larry E. Johnson and wife, Mary L. Johnson,, own real property in the Hickory Grove Annexation Area, the subject of Ordinance 690-X. Hereafter the word \u201cBrown\u201d will refer to all of these petitioners.\nPetitioners John A. DeGroot and wife, Ophelia H. DeGroot, and A. Keith Woodbery and wife, own real property in the Albemarle Road-York Road Annexation Area, the subject of Ordinance 689-X. Hereafter the word \u201cDeGroot\u201d will refer to all of these petitioners.\nOn 10 January 1973, Dunn, Brown and DeGroot, under authority of G.S. 160-453.18(a), filed separate petitions in the Superior Court of Mecklenburg County in which they attacked the annexation ordinances on the ground the services to be provided the areas to be annexed as set forth in the approved plans were insufficient to constitute compliance with the requirements of G.S. 160-453.15. City answered each petition.\nThe court consolidated the three petitions for review at a single hearing. At the hearing, evidence was offered, by petitioners and by respondents. In respect of each petition, the court made findings of fact, stated conclusions of law and entered judgment. Each judgment affirmed the ordinance and adjudged that \u201cthe annexation may take place as scheduled.\u201d\nEach petitioner excepted and appealed. G.S. 160-453.18 (h).\nCasey & Daly by Hugh G. Casey, Jr., for petitioner appellants.\nHenry W. Underhill, Jr., H. Michael Boyd and W. A. Watts for respondent appellee." }, "file_name": "0542-01", "first_page_order": 562, "last_page_order": 568 }