Thrash v. City of Asheville

Judge Greene

dissenting.

While I agree with much in the majority opinion, nonetheless I disagree on several of what I consider to be dispositive issues.

I

Owenby Property

The Owenby Property (Property) is an 18.25 acre single tract of land which the City of Asheville (City) treated as subdivided into eighteen separate lots of five acres or less in size. Although the plat of the Property recorded in 1976 in the Buncombe County Register of Deeds Office showed a paper subdivision of eighteen lots, the entire 18.25 acre tract of property was last conveyed in 1984 with a metes and bounds description which did not refer to the recorded subdivision map. The record reveals that the Property had never been surveyed and divided on the ground, no lots had been sold, and no roads had been constructed and opened for traffic. The Buncombe County tax records showed the Property as eighteen separate lots.

The question presented is whether the City’s classification of the Property is based on a method that is “calculated to provide reasonably accurate results.” N.C.G.S. Sec. 160A-54 (1987). In my opinion, the City’s classification of the Property as a ‘subdivision’ does not reflect the actual facts with reasonable accuracy and therefore is not ‘calculated to provide reasonably accurate results.’ Additionally, the Buncombe County Tax Office was not authorized by statute to appraise the Property as a ‘subdivision’ because the tract had not “been divided into lots that are located on streets laid out .and open for travel and that [had] been sold or offered for sale as lots . . .” N.C.G.S. Sec. 105-287(b)(4) (1985); cf. N.C.G.S Sec. 105-287(d) (Cum. Supp. 1988) (“A tract is considered subdivided into lots when the lots are located on streets laid out and open for travel and the lots have been sold or offered for sale as lots since the last appraisal of the property.”).

*477 Nonetheless, the City’s classification of the Property, if based on a “reasonably reliable source” must be accepted by the reviewing court “unless the petitioners on appeal show that such estimates are in error in the amount of five percent (5°/o) or more.” N.C.G.S. Sec. 160A-54(3) (1987). I believe that petitioners made this showing.

At trial, the City submitted that 64.9%.of the “total acreage, not counting the acreage used at the time of annexation for commercial, industrial, governmental or institutional purposes,” consisted of subdivided “lots and tracts five acres or less in size.” The City maintained that this percentage included 441.8 acres consisting of “lots and tracts five acres or less in size” and a total of 680.4 acres “not counting the acreage used at the time of annexation for commercial, industrial, governmental or institutional purposes.” The trial court determined that the City made several errors in classification of the properties and that these errors required an adjustment to reduce the percentage to 62.257%, including 434.66 acres consisting of “lots and tracts five acres or less in size” and a total of 698.17 acres “not counting the acreage used at the time of annexation for commercial, industrial, governmental or institutional purposes.” The City does not now contest the trial court’s property reclassifications and percentage reductions. Assuming, arguendo, that the Owenby Property was misclassified as subdivided property, subtraction of its 18.25 acres from the “lots and tracts five acres or less in size” decreases the relevant percentage to 59.643, just as it reduces to 416.41 the acreage in “lots and tracts five acres or less in size” of the 698.17 total acreage which the City submits is ripe for annexation. The new percentage of 59.643% represents a reduction in excess of five percent from the City’s original calculations of 64.9%, and the City no longer complies with the 60% ‘subdivision’ requirement of Section 160A-48(c)(3).

II

Enka-Candler Water and Sewer District

A portion of the annexed area is in the Enka-Candler Water and Sewer District (District). The property owners in the District pay an increased ad valorem tax as a result of a one and a half million dollar ($1,500,000) bonded indebtedness which they incurred for the purposes of installing sewer lines in the District. At the time of the annexation, a large sum of the bonded indebtedness remained unpaid.

*478 The petitioners argue that since the annexation ordinance provided no adjustment for the ad valorem taxes, the property owners in the District will be required to pay not only the same taxes as the property owners in the preexisting City limits but also the taxes assessed by the District. The City argues that tax relief will be provided to the property owners in the District consistent with N.C.G.S. Sec. 160A-49(f) (1987). “[Property which is part of a sanitary district . . . shall not be subject to that part of the municipal taxes levied for debt service for the first five years after the effective date of the annexation.” Id. (emphasis added). Section 160A-49(f) requires the municipality to provide certain tax relief to property owners in a “sanitary district” which the municipality annexes, but the statute is silent as to “water and sewer” districts. Id. The City contends that “sanitary” districts should be read to include “water and sewer” districts. I disagree. While Section 160A-49(f) does not define a “sanitary district,” N.C.G.S. Sec. 130A-47 et seq. (1986) comprises its characteristics. Likewise, N.C.G.S. Sec. 162A-86 et seq. (1987) delineates a “water and sewer district.” The statutory chapter and subpart authorizing the creation of the ‘water and sewer’ and ‘sanitary’ districts respectively empower these discrete districts with different authorities and denote methods of creation and operation that are substantially different. Through its legislative action, the General Assembly drew very clear distinctions between those terms. Accordingly, this court does not have the authority to substitute the term ‘water and sewer’ for the word ‘sanitary’ in Section 160A-49(f), as the City has suggested.

Because the General Assembly has not provided any statutory form of tax relief to the property owners in this ‘water and sewer’ District, the City is precluded from annexing this property unless it first adjusts the annexation ordinance. The annexation statutes provide that property of an annexed area “shall be entitled to the same privileges and benefits as other parts of such municipality[J” Section 160A-49(f), and the property “in the newly annexed territory [shall be] subject to municipal taxes on the same basis as is the preexisting territory of the municipality.” N.C.G.S. Sec. 160A-58.10(c) (1987). As the property owners in this District are subject to additional ad valorem taxes, the ‘benefits’ they receive from the City are not the ‘same’ as the ‘benefits’ received by property, owners in the ‘other parts of such municipality.’ Furthermore, the taxes paid by the property owners in the District are not ‘on the same basis as is the preexisting territory of the munici *479 pality.’ Consequently, the annexation of the properties in this District is inconsistent with these statutes and must fail. The fact that the City is currently negotiating with officials of the District regarding these taxes is immaterial to these proceedings in my opinion, since those negotiations should have been completed prior to the adoption of the annexation ordinance language.

Ill

Accordingly, I would reverse the order of the süperior court approving the annexation ordinance and remand to the superior court for subsequent remand to the City for further proceedings.