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In re Annexation Ordinance No. 300 -X

Filed: December 1, 1981.

IN RE: ANNEXATION ORDINANCE NO. 300-X; CHARLES J. WHITTLE AND WIFE, ANN WRIGHT WHITTLE, PETITIONERS


Appeal by petitioners pursuant to G.S. 160A-50(h) from judgment of Johnson, J., presiding at 12 December 1980 non-jury mixed term Mecklenburg Superior Court. Judgment was entered 22 December 1980.

Branch, Chief Justice.

Branch

Petitioners first argue that the City's annexation plan fails to meet the requirements of G.S. 160A-47(3) in that it lacks sufficient detail and specificity.

G.S. 160A-47(3) requires a municipality's annexation report to contain:

(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:

a. 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.

b. 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.

c. 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.

d. Set forth the method under which the municipality plans to finance extension of services into the area to be annexed.

The burden is on petitioner to establish by competent and substantial evidence the City's noncompliance with G.S. 160A-47(3).

As a general rule it is presumed that a public official in the performance of his official duties "acts fairly, impartially, and in good faith and in the exercise of sound judgment or discretion, for the purpose of promoting the public good and protecting the public interest. [Citation omitted.] The presumption of regularity of official acts is rebuttable by affirmative evidence of irregularity or failure to perform duty, but the burden of producing such evidence rests on him who asserts unlawful or irregular conduct. The presumption, however, prevails until it is overcome by . . . evidence to the contrary. . . . Every reasonable intendment will be made in support of the presumption. . . ." Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961); accord, Styers v. Phillips, 277 N.C. 460, 178 S.E.2d 583 (1971). Hence the burden is on the petitioner to overcome the presumption by competent and substantial evidence. 6 N.C. Index 2d, Public Officers, ยง 8 (1968).

In re Annexation Ordinance, 284 N.C. 442, 452, 202 S.E.2d 143, 149 (1974). See also In re Annexation Ordinance, 296 N.C. 1, 10-11, 249 S.E.2d 698, 703-704 (1978); In re Annexation Ordinance, 255 N.C. 633, 642, 122 S.E.2d 690, 697 (1961).

The City's written report contains plans for providing the major municipal services enumerated in G.S. 160A-47(3), the ...


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