Appeal by petitioners pursuant to G.S. 160A-38(h) from the judgment of Lamm, J., presiding at the 26 May 1981 session of Superior Court, Burke County.
Branch, Chief Justice. Justice Carlton dissenting. Justice Exum joins that dissenting opinion.
By their first assignment of error, petitioners contend that the trial court erred in holding that respondent Town complied with the provisions of G.S. 160A-36(d) in fixing the area to be annexed.
§ 160A-36. Character of area to be annexed. -- (a) A municipal governing board may extend the municipal corporate limits to include any area which meets the general standards of subsection (b), and which meets the requirements of subsection (c).
(b) The total area to be annexed must meet the following standards:
(1) It must be adjacent or contiguous to the municipality's boundaries at the time the annexation proceeding is begun.
(2) At least one eighth of the aggregate external boundaries of the area must coincide with the municipal boundary.
(3) No part of the area shall be included within the boundary of another incorporated municipality.
(c) The area to be annexed must be developed for urban purposes. An area developed for urban purposes is defined as any area which 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 five acres or less in size.
(d) In fixing new municipal boundaries, a municipal governing board shall, wherever practical, use natural topographic features such as ridge lines and streams and creeks as boundaries, and if a street is used as a boundary, include within the municipality developed land on both sides of the street. (Italics added.)
Petitioners do not attack the annexation on the basis of any lack of compliance with subsections (a), (b), or (c) of the above statute but argue that the Town Planner and the municipal governing board violated the italicized portion of subsection (d) by failing to follow natural topographic features in drawing the boundary of the annexed area.
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, § 8 (1968).
In re Annexation Ordinance, 284 N.C. 442, 452, 202 S.E.2d 143, 149 (1974).
In order to establish noncompliance with the above statute, petitioners must show two things: (1) that the boundary of the annexed area does not follow natural topographic features, and (2) that it would have been practical for the boundary to follow such features.
Our examination of this record discloses that the total external boundary of the annexed area was ...