Opinion
No. 743SC407
Filed 7 August 1974
1. Municipal Corporations 2 — annexation report amended — further public hearing not required There is no requirement that a second public hearing is always necessary when an annexation report is amended.
2. Municipal Corporations 2 — annexation — water system for fire protection adequate Finding of fact by the trial court that a proposed water system would provide adequate fire protection for an annexed area was supported by competent evidence and is conclusive on appeal.
APPEAL by petitioners from Rouse, Judge, 31 December 1973 Session of Superior Court held in PITT County.
Wallace, Langley, Barwick Llewellyn, by F. E. Wallace, Jr., for petitioner appellants.
Gaylord and Singleton, by L.W. Gaylord, Jr., for respondent appellee.
On 9 May 1972 the Board of Commissioners of the Town of Grifton passed a resolution to consider annexation of two areas, designated as Tract No. 1 and Tract No. 2. As required by G.S. 160A-35, the Commissioners prepared and made available to the public an annexation report setting out plans for the extension of municipal services to the two tracts. A public hearing was held on 14 June 1972, and on 27 July 1972 the Board of Commissioners adopted an ordinance annexing the two areas. Shortly thereafter, petitioners filed a petition challenging the annexation, as permitted by G.S. 160A-38. The case was heard in the Superior Court of Pitt County, and it was appealed to this Court. In Williams v. Town of Grifton and Parker v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288, this Court held that the water system planned for Tract No. 2 was not adequate to meet the requirements of G.S. 160A-35, because the water pressure in the fire hydrants planned for this tract would not be sufficient for fire protection purposes. The matter was remanded to the Grifton Board of Commissioners for modification of the proposed water system.
On 11 December 1973 the Board of Commissioners adopted a resolution amending the annexation report to provide additional fire hydrants and water mains for Tract No. 2. No public hearing was held before this resolution was passed. On 27 December 1973 the Superior Court held a hearing on the proposed water system as modified by the December 11 resolution, and evidence was offered by the petitioners and the Town of Grifton. The court issued an order, with findings of fact and conclusions of law, on 2 January 1974. In its findings of fact the court stated that the revised water system "would provide fire protection to the Forest Hills Area (Tract No. 2) on substantially the same basis and in the same manner as such services are provided within the rest of the Town of Grifton," thus satisfying the requirements of G.S. 160A-35. The court ordered "[t]hat the Annexation Ordinance . . . adopted by the Board of Commissioners of the Town of Grifton, North Carolina, on July 27, 1972, be and the same is hereby affirmed without change." Petitioners appealed to this Court.
Petitioners contend that the Board of Commissioners was required to hold a public hearing before amending the annexation report on 11 December 1973. Under G.S. 160A-37 (d), before any territory may be annexed by a municipality, there must be a public hearing at which "all persons resident or owning property in the territory . . . and all residents of the municipality, shall be given an opportunity to be heard." The Board of Commissioners of Grifton held such a public hearing on 14 June 1972. Under G.S. 160A-37 (e), after the public hearing has been held, the Board of Commissioners "shall have authority to amend the [annexation] report . . . to make changes in the plans for serving the area proposed to be annexed." G.S. 160A-37 (e) contains no provision requiring a second public hearing before the annexation report may be amended.
In Adams-Millis Corp. v. Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681, the Kernersville Board of Commissioners passed a resolution to consider annexation of certain territory, prepared an annexation report, and held a public hearing. The annexation report was made available to the public at least 14 days before the public hearing, as required by G.S. 160A-37 (c). However, "[a]t the beginning of the hearing, the Mayor read certain recommended amendments to the annexation reports." Id. at 80, 169 S.E.2d at 497. After the annexation ordinance was passed, petitioner contested the annexation, contending that the Commissioners were required to hold a second hearing at least fourteen days after the amendments were announced. This Court held that a second hearing was not required, in view of the provisions of G.S. 160A-37 (e) (then codified at G.S. 160-453.5 (e)) giving the Commissioners power to amend the annexation report. In the present case, likewise, a second public hearing should not be required. To hold that a public hearing is always necessary when an annexation report is amended would result in a proliferation of unnecessary hearings.
Petitioners next contend that the Superior Court erred in finding as a fact that the proposed water system, as modified by the Board of Commissioners in the amendment of December 11, would provide adequate fire protection for Tract No. 2. However, this finding of fact is fully supported by the testimony of Willis Barlowe, a civil engineer employed by the Town of Grifton. At the hearing on December 27, Barlowe testified:
"Under this proposed plan, the people in this area annexed [will] have the same water pressure available for fire protection that the present citizens of Grifton now have. It will be at least comparable or better. Following development of the plans, the people in that area, that is the Forest Acres area, Tract No. 2, will have the same water pressure that the citizens of Grifton will then have. It will be equal or better."
Petitioners argued that the proposed water system would be adequate for the heavily populated northern area of Tract No. 2, but would not be sufficient for the more sparsely populated southern part of the tract. However, Barlowe testified:
"In developing this plan, the original and the amended plan, I did take into consideration houses South of this so-called Forest Acres area which would be in the annexed area. I know the location of these houses and I have located them on the plan. . . . The furtherest distance of any of these from the proposed line is about 500 feet. . . . They could be served by running a line to them. . . . Generally, we put water lines in streets in serving the houses and the people run lines from the street to the house."
Findings of fact made by the trial court are conclusive on appeal when supported by competent evidence. Cogdill v. Highway Comm. and Westfeldt v. Highway Comm., 279 N.C. 313, 182 S.E.2d 373; Trotter v. Hewitt, 19 N.C. App. 253, 198 S.E.2d 465, cert. denied, 284 N.C. 124, 199 S.E.2d 663; Coble v. Brown, 1 N.C. App. 1, 159 S.E.2d 259.
The Superior Court correctly determined that the annexation ordinance and annexation report, as amended by the Board of Commissioners on 11 December 1973, meet the requirements of G.S. 160A-35 and G.S. 160A-37 and may properly be put into effect. However, the court's order provides that "the Annexation Ordinance . . . adopted . . . on July 27, 1972, be and the same is hereby affirmed without change." The annexation ordinance passed on 27 July 1972, in its original form, was invalid for the reasons stated in Williams v. Town of Grifton and Parker v. Town of Grifton, supra. The first paragraph of the mandate of the Superior Court's order should be modified to read as follows:
"FIRST: That the Annexation Ordinance entitled: `An Ordinance to Extend the Corporate Limits of the Town of Grifton, North Carolina, Under the Authority Granted by Part 2, Article 36, Chapter 160 of the General Statutes of North Carolina,' adopted by the Board of Commissioners of the Town of Grifton, North Carolina, on July 27, 1972, as modified by said Board on December 11, 1973, in Resolution 73-23, be and the same is hereby affirmed."
With this modification, the judgment of the Superior Court is affirmed.
Modified and affirmed.
Chief Judge BROCK and Judge BRITT concur.