Conover v. Newton

Citations: 256 S.E.2d 216; 297 N.C. 506; 1979 N.C. LEXIS 1405Docket: 112

Court: Supreme Court of North Carolina; July 12, 1979; North Carolina; State Supreme Court

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In the case of Conover v. Newton and Allman v. Newton, the Supreme Court of North Carolina addressed several procedural errors claimed by the appellant, the City of Newton. First, Newton argued that it was prejudiced by the trial court proceeding with a hearing on a converted motion for judgment on the pleadings in Allman v. Newton without proper notice. Second, it contended that the trial court erred by hearing motions for summary judgment while discovery proceedings initiated by Newton were still pending in both cases. Third, Newton claimed that the summary judgment granted in Conover v. Newton was improper as it was based on grounds not presented in Conover's written motion.

The court noted that a motion for judgment on the pleadings in Allman v. Newton was filed on July 27, 1978, with a hearing set for July 31, 1978, during which the motion was converted to a motion for summary judgment due to the introduction of evidence beyond the pleadings. Although the conversion should have invoked the notice requirement of Rule 56(c), the court determined that the lack of notice did not constitute reversible error as all relevant evidence was presented at the hearing. The sole discovery effort made by Newton involved interrogatories directed at the plaintiffs. At the hearing, most plaintiffs testified regarding their decision to sign and later withdraw from the annexation petition. The court concluded that there was no factual dispute, only legal questions regarding the right of plaintiffs to withdraw their signatures and the implications for the annexation ordinance, which were thoroughly argued by both parties.

Appellant-Newton was not prejudiced by the lack of ten days' notice prior to the hearing on plaintiffs' motion, nor by procedural issues related to pending discovery when the court ruled on summary judgment motions in Allman v. Newton and Conover v. Newton. Although discovery was initiated by Newton, the court's decision to proceed was deemed non-reversible error, as relevant information was obtained through extensive cross-examination of plaintiffs at the hearing. In Conover v. Newton, while depositions of city officials had not yet occurred, the testimony of seven out of the nine sought officials provided sufficient clarity on the factual issues, rendering any potential error non-prejudicial. The court reserved ruling on the motion until after the hearing, and no affidavits were filed by Newton in opposition until after the deadline, further negating claims of prejudice. Appellant-Newton's objections to the grounds for granting summary judgment were also overruled, as Rule 56 does not mandate specific grounds in such motions. The court correctly identified that the issue of whether all property owners signed the annexation petition was encompassed by Conover's motion. Lastly, Newton's two-pronged challenge to the ruling that property owners could withdraw from the annexation petition and the subsequent voiding of the entire ordinance was acknowledged but not upheld, as the court found no error in these determinations.

Appellant argues that the annexation ordinance should be void only for the area that became non-contiguous to Newton due to property withdrawals. The court disagrees, affirming that the superior court's decision regarding property owners' withdrawal rights is decisive for both Allman v. Newton and Conover v. Newton. Under G.S. 160A-31, a municipality can annex areas contiguous to its boundaries if a petition, signed by all property owners, is presented. Six property owners who initially signed the petition withdrew their support during a public hearing, a right established under G.S. 160A-31(d), which allows property owners to raise errors regarding the petition at the hearing. Appellees argue that this grants them the right to withdraw, while appellant contends it limits the discussion to errors only and prohibits withdrawals. The court finds that the term "error" does not restrict the right to withdraw and emphasizes that the governing board's determination of the petition's sufficiency occurs after the public hearing, implying a right to withdraw until the hearing concludes. The ruling is further supported by case law, particularly Idol v. Hanes, which affirms the right to withdraw from such petitions absent any legislative restriction. Thus, the appellant's arguments are deemed without merit.

The creation of a sanitary district in Idol was governed by a 1927 North Carolina law requiring signatures from fifty-one percent of resident freeholders for a petition to be acted upon by county commissioners. Although the initial petition exceeded this requirement, many individuals later attempted to withdraw their signatures, potentially bringing the total below the threshold. Nevertheless, the commissioners approved the petition, leading to an appeal against an injunction. The court ruled that individuals have the right to withdraw their names from a petition any time before final action, emphasizing the importance of allowing individuals to reconsider their decisions for fairness and thoughtful community governance. This reasoning also applies to voluntary annexation petitions, which require unanimous consent from property owners, making the right to withdraw even more significant due to the greater implications of annexation. While the legislative requirement for unanimous consent may prevent a majority from achieving annexation, the court underscored that the loss of a majority's aspiration does not negate their rights. The absence of a statutory prohibition on withdrawal supports individual petitioners' rights to change their minds before final decisions are made. Additionally, circumstances surrounding voluntary annexation may involve misinformation and pressure, further justifying the need for withdrawal rights.

Petitioners have the right to withdraw from an annexation petition under certain conditions, as established by various court rulings. While individuals may withdraw their names from a petition within a limited timeframe, courts have denied this right once a hearing has occurred or if the withdrawal would affect the jurisdiction of the governing body. The case Town of Blooming Grove v. Madison supports the view that a signer can withdraw before final action is taken on the petition. Conversely, some jurisdictions have ruled that once a sufficient petition is filed with the municipal governing board, withdrawal is not permitted. Others allow withdrawal until the governing body begins affirmative action, such as holding a public hearing.

The prevailing view, without legislative guidelines, is that petitioners may withdraw anytime before the governing body enacts an ordinance based on the petition. This approach is deemed to encourage thoughtful decision-making among voters and discourage premature petitioning without adequate disclosure. 

In this instance, the withdrawals were deemed valid, leading to an evaluation of their impact on the Newton annexation ordinance adopted on May 3, 1978. The superior court declared the ordinance void, agreeing that essential procedural requirements for a valid petition must be adhered to, as a sufficient petition is jurisdictional. The ordinance was based on a single petition, which became insufficient after the plaintiffs withdrew, as it no longer included signatures from all property owners in the annexation area. Consequently, the City of Newton lacked jurisdiction to proceed with the annexation. Newton sought to modify the petition to align it with statutory requirements by excluding the properties of those who withdrew and addressing issues of contiguity.

Appellant-Newton seeks to have the Court interpret the annexation petition as a request for annexation of either the entire area or part of it. However, the voluntary annexation statute, when considered alongside involuntary annexation statutes (specifically G.S. 160A-37(e) and G.S. 160A-49(e)), does not permit such equitable modification. These statutes grant governing boards the authority to adopt an ordinance for annexing the entire area described in the public hearing notice, but G.S. 160A-31(d) states that for voluntary annexation, the governing board can only annex the territory as a whole if the petition meets statutory requirements. The absence of specific authorization in the voluntary annexation statute to annex only part of the area, in contrast to the involuntary annexation statutes, indicates a legislative intent for voluntary annexation petitions to be considered as a single unit. Consequently, the Court affirms the summary judgments in favor of plaintiffs in cases Allman v. Newton and Conover v. Newton, declaring the entire Newton annexation ordinance void. The Court then addresses the appeal regarding Conover's involuntary annexation, noting that the record must demonstrate substantial compliance with the statutory provisions. If there is a challenge to the annexation ordinance, the burden lies with the petitioners to provide competent evidence of non-compliance or procedural irregularities that materially affect their rights, as public officials are presumed to act in good faith and in the public interest.

The presumption of regularity of official acts can be rebutted by affirmative evidence of irregularity, with the burden of proof on the party alleging unlawful conduct. This presumption remains until counter-evidence is presented, and all reasonable assumptions support it. In the context of G.S. 160A-38, the superior court's review of involuntary annexation proceedings is limited to assessing: (1) compliance with statutory procedures; (2) whether petitioners will suffer material injury from any non-compliance; and (3) if the annexation area meets the requirements of G.S. 160A-36. 

The petitioners raised three legal errors on appeal regarding the superior court's conclusions: (1) that an error in the metes and bounds description did not invalidate the annexation ordinance; (2) that the ordinance complied with G.S. 160A-36(d) regarding the use of natural topographic features as boundaries; and (3) that the amendment procedure adhered to statutory requirements. The court found no merit in these claims. 

Specifically, the metes and bounds description failed to include a small property owned by Mrs. F. A. Abernethy, which complicated the material injury argument since she did not join the petition. However, this issue was resolved as the filed map referenced in the Resolution of Intent adequately described the annexation area, including Mrs. Abernethy's property. The court concluded that there was substantial compliance with G.S. 160A-37 despite minor irregularities. 

The superior court's findings confirmed that the annexation boundaries followed various natural features and structures, comprising significant portions of natural and man-made boundaries, thus meeting the necessary legal criteria for annexation.

The boundary of the annexation ordinance correlates with natural topographic features, specifically using highways and railroads that act as ridge lines. The Conover governing board has effectively utilized these features as municipal boundaries, including developed land on both sides of the roads when applicable. The court found that this approach aligns with G.S. 160A-36(d), which stipulates the use of natural features and the inclusion of developed properties adjacent to streets in determining municipal boundaries. 

During the hearing, urban planning consultant Mr. Charles H. Davis provided substantial evidence supporting the ordinance's compliance with the statute. In contrast, Conover City Engineer Mr. Clifford Smithson, the only witness for the petitioners, had limited knowledge of the boundary areas and thus did not significantly challenge the ordinance's validity. The court concluded that there was substantial compliance with the statutory requirements.

Moreover, G.S. 160A-37(e) allows for amendments to the annexation report following a public hearing without mandating a second hearing or a specific period for public inspection. Following the public hearing on May 3, 1978, Conover City Council amended the report on May 11, 1978, to adjust financing details and reduce the annexation area, which was deemed permissible under the statute. Consequently, the court affirmed the validity of the Conover annexation ordinance and upheld the trial court's decisions in all three related actions. Additionally, the court noted that the appellant-Newton's claim for a jury trial concerning the withdrawal of signatures was unfounded, as the plaintiffs' decision was based on their beliefs of being misled, with no evidence of fraud presented.