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Williams v. Town of Kernersville

June 16, 1998

ROBERT GREGORY WILLIAMS, DENVER B. COTTINGHAM, AND WIFE, CHERYL G. COTTINGHAM, WILLIAM S. ALLEN, AND WIFE, JACKIE B. ALLEN, DELORES STAFFORD CLARKE, AND HUSBAND, CARL LEWIS CLARKE, DANNY L. DILLON, AND WIFE, KATHRYN REDMAN DILLON, WILLIAM T. GILLIAM, AND WIFE, JULIA S. GILLIAM, ALFRED J. HAMMONDS, AND WIFE, VIOLET HAMMONDS, HUGH GRAY HILL, SR., AND WIFE, WILLIE SUTTON HILL, DAVID MATTHEWS, AND WIFE SHIRLEY S. MATTHEWS, RONALD L. RICHARDS, AND WIFE, LUCILLE G. RICHARDS, DORSEY STEPHEN SIZEMORE, AND WIFE, JULIE M. SIZEMORE, MICHAEL D. STADDON, AND CANDANCE J. STADDON, ROBERT U. STUART, AND WIFE, REBECCA W. STUART, JACK R. TONEY, AND WIFE, PHYLLIS TONEY, CHARLES W. WILES, AND WIFE BETTY WILES, THOMAS A. TUCKER, KENNETH K. MABE, AND WIFE, RHONDA A. MABE, ROBERT L. OGLESBY, AND WIFE, GLORIA F. OGLESBY, CHARLES F. ALLEN AND WIFE, JEANETTE C. ALLEN, WILLIAM D. CISSNA AND WIFE, KATHY ANN CISSNA, ANTHONY C. MULLER AND WIFE, FRANCES E. MULLER, THOMAS FORYT AND WIFE, MARSHA FORYT, INA B. OWEN, MARK J. MATHABANE AND WIFE, GAIL E. MATHABANE, RUSSELL E. DEAN AND WIFE, ANNA MARIE DEAN, JOHN B. KUNZ AND WIFE, MARSHA R. KUNZ, R. WAYNE NELSON AND WIFE, CAROL J. NELSON, THOMAS FREDRICK VAUGHT AND WIFE, LILLIAN D. VAUGHT, ROGER S. CHARMICHAEL AND WIFE, LINDA S. CHARMICHAEL, ROBERT J. MCCLELLAN AND WIFE, MARY L. MCCLELLAN, BRIAN GREEN, DONNIE W. PRIDDY AND WIFE JANICE G. PRIDDY, ROBERT B. WHITE AND WIFE, NANCY H. WHITE, LEWIS BACKER AND WIFE, KATHLEEN BACKER, KENNETH LAMBERSON AND WIFE, MARY HELEN LAMBERSON, CHARLES F. SNOW, III AND WIFE, SUSAN CAROL SEARS SNOW, ARLINE HOOVER AND HUSBAND, WALLACE HOOVER, DAVID S. ELLIOTT AND WIFE, ANNE T. ELLIOTT, STEPHEN W. LONG AND WIFE, PHYLLIS E. LONG, ALAN C. COMER AND WIFE, LORI W. COMER, CLARKE L. HUBER AND WIFE, LAURIE E. HUBER, PHILIP THOMAS AND WIFE, DONNA B. THOMAS, JESSE B. WILLIAMS AND WIFE, KATHLEEN A. WILLIAMS, EDDY L. MESSICK, CLEMON W. EATON AND WIFE, MARY S. EATON, IMOGENE W. MCGEE, HELEN F. ELLIOTT, ROBERT G. WOODS, SHANNON WILSON NELSON, GARY V. NELSON AND WIFE, MARY M. NELSON, AND HORACE V. WILSON, STEPHEN B. PLESS AND WIFE, KAY D. PLESS, JAMES D. MURRAY AND WIFE, BARBARA R. MURRAY, SIDNEY CALDWELL AND WIFE, CONNIE J. CALDWELL, STEPHEN ARMSTRONG AND WIFE, KATHERINE ARMSTRONG, BILL GAITHER AND WIFE, BETTY J. GAITHER, DIANA L. LODDING, JAMES R. SCHRADER AND WIFE, VICTORIA A. SCHRADER, JOYCE WATERS, CHAD CULBERTSON AND WIFE, DONNA W. CULBERTSON, BRUCE E. BAUMBACH AND WIFE, IRIS A. BAUMBACH, JOHN L. GOFORTH, JR., GARY SILER AND WIFE JANICE SILER, CLETUS S. ANGEL AND WIFE MILDRED S. ANGEL, RONALD E. HANKINS AND WIFE, STACY M. HANKINS, MARK SUNTER AND WIFE JANE SUNTER, KENNETH E. JOHNSON, JR., AND WIFE, CYNTHIA S. JOHNSON, STEVEN D. YORK AND WIFE, DONNA L. YORK, JOSEPH P. MITCHELL AND WIFE, SONIA K. MITCHELL TIMOTHY J. GRABUS AND WIFE, CHRISTINA S. GRABUS, HELEN MARSHALL RENEGAR, BENNY O. TADLOCK AND WIFE, JOYCE S. TADLOCK, JOHNNY THOMAS, SR., AND WIFE, GEORGIA THOMAS, BURR BURCHETTE AND WIFE, VIOLA BURCHETTE, RONNIE ANGEL, ARBOR DEVELOPMENT CORPORATION, JIMMY L. LOCKLEY AND WIFE, N. LAVERNE LOCKLEY, ROBERT C. COBLE, JR. AND WIFE, DEBRA L. COBLE AND DAVID FOY AND WIFE, DIANNE FOY, PETITIONERS,
v.
TOWN OF KERNERSVILLE, A MUNICIPAL CORPORATION, RESPONDENT.



The opinion of the court was delivered by: Wynn, Judge.

Appeal by petitioners from judgment entered 13 March 1997 by Judge Howard R. Greeson, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 18 March 1998.

Under the provisions of N.C. Gen. Stat. § 160A-50, petitioners brought this action for judicial review of two annexation ordinances adopted by the town council of the Town of Kernersville. One ordinance ("South Annexation Ordinance") sought to involuntarily annex an area to the south of the town ("South Area"); the other ordinance ("West Annexation Ordinance") was for annexation of an area to the west of the town ("West Area").

After a hearing, the trial court made the following pertinent findings of fact:

4. In accordance with the requirements of N.C. Gen Stat. §160A-49(i), the Town of Kernersville adopted Resolutions of Consideration of Annexation of the areas annexed in Ordinances 96-A-3 and 4 on October 5, 1993, and June 6, 1995.

5. In accordance with the requirements of N.C Gen. Stat. §160A-49(a), the Town of Kernersville adopted a Resolution of Intent to annex the areas described in Annexation Ordinances 96-A-3 and 4 on February 6, 1996. . . . .

12. Regarding the issue submitted by the Petitioners: Is the South Annexation Area contiguous to the corporate area of the Town of Kernersville within the meaning of N.C. Gen. Stat. §160A-48(b)? The

Town of Kernersville, in its Annexation Report and in its Annexation Ordinance, properly concluded that the South annexation area was contiguous to the corporate limits of the Town of Kernersville as required by N.C. Gen. Stat. §160A-48(b)(2) in that more than one-eighth of the aggregate external boundary of the area proposed for annexation coincided with the municipal boundary. The surveyor for the Petitioners herein testified that the South Annexation area was contiguous to the existing corporate limits of the Town of Kernersville as required by N.C. Gen. Stat. §160A-48(b)(2). . . . The Petitioners offered no evidence which contested the calculation of contiguity contained in the Annexation report. The Court thus finds that the South area was contiguous to the boundary of the Town as it existed at the commencement of the annexation proceedings in that 35.40% of the aggregate external boundary of the South area coincides with the existing Town limit and thus exceeds the requirement that one-eighth of the boundary coincide with the municipal boundary.

13. Regarding the issue submitted by the Petitioners: Does the west annexation area qualify to be annexed by meeting the population requirements of N.C. Gen. Stat. §160A-49(c)(1)? The Town of Kernersville properly calculated the population for the West annexation area and properly concluded that the West area did qualify to be annexed. Testimony offered by the Parties showed that population of the West annexation area was calculated by first determining the number of dwelling units in each census block located within the area to be annexed, then determining the average family size for each census block in the area to be annexed based upon the 1990 Federal Decennial Census. The number of dwelling units in each census block was then multiplied by the average family size in each block to calculate the estimated population of each block. The block numbers were then added together to produce the population estimate used to determine whether this area complied with the requirements of N.C. Gen. Stat. §160A-48(c)(1).

The Town of Kernersville calculated the number of person residing in the West annexation area as 2.05 persons per acre which exceeds the 2 persons per acre required by N.C. Gen. Stat. §160A-48(c)(1). The method used by the Town of Kernersville produced reasonably accurate results and complied with the requirements of N.C. Gen. Stat. §160A-54(1) and were thus accepted by this Court as the statute requires. The Petitioners presented evidence that showed that by using another method of calculating average family size for the Census tract, the population for the West annexation area would be 1.88 persons per acre which would be less than the statutory requirement of 2 persons per acre; however, Petitioner's estimate of average family size included Census blocks located outside the area to be annexed while the calculation by the Town only included Census blocks located within the West annexation area. Petitioners' estimate of 1.88 persons per acre neither demonstrates an error in the method used by the Town in its calculation nor an error of greater than ten percent (10%) in the calculation made by the Town and thus fails to meet the requirements of N.C. Gen. Stat. §160A-54(1) which establish the point at which a reviewing court shall disregard the numbers produced by the annexing municipality. The Court thus finds that the West annexation area qualified to be annexed by meeting the population requirements of N.C. Gen. Stat. [§]160A-49(c)(1).

The trial court concluded that Kernersville had properly enacted the annexation ordinances and that the annexed areas met the requirements of N.C. Gen. Stat. § 160A-48.

The petitioners appeal from that judgment, raising two issues: (I) Whether the South Annexation Ordinance met N.C. Gen. Stat. § 160A- 48(b)'s contiguity requirement, (II) Whether the West Annexation Ordinance met N.C. Gen. Stat. § 160A-48(c)(1)'s urbanization test.

I.

Petitioners contend that the South Annexation area does not meet section 160A-48(b)'s contiguity requirement. We disagree.

Kernersville brought this annexation proceeding under part 3 of Article 4a of Chapter 160A, N.C. Gen. Stat. §§ 160A-45 to -54 (1994), which applies to involuntary annexations by municipalities with populations of 5,000 or more people. Subsection (b) of N.C. Gen. Stat. § 160A-48, "Character of area to be annexed," requires that the area to be annexed "be adjacent or contiguous to the municipality's boundaries" and that ...


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