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					POPULATION DENSITY
    QUESTIONS


  FAYETTEVILLE, NC


PHASE 5 of ANNEXATION

      AREA #1
       (20 January 2006)




               1
PREFACE

        This document questions Fayetteville’s statutory compliance for area #1 in the city’s
Phase V Annexation Plan. The study only focuses on area#1 since the other eight annexation
areas appear to comply with statutory standards. Maps within this document were made with
Geographic Information System (GIS) files obtained from Fayetteville and Cumberland County
which are approved for public release IAW North Carolina General Statute § 132-10.
        The overarching question is: Did Fayetteville planners incorrectly apply the population
density standard to qualify area #1 for involuntary annexation?
        Note: Fayetteville did not use any other available statutes under § 160A-
48(c)….Developed for Urban Purposes or § 160A-48(d).
        The applicable statute states:

§ 160A-48. Character of area to be annexed

        (c) Part or all of the area to be annexed must be developed for urban purposes at the time
of approval of the report provided for in G.S. 160A-47. Area of streets and street rights-of-way
shall not be used to determine total acreage under this section. An area developed for urban
purposes is defined as any area which meets any one of the following standards:
                (1) Has a total resident population equal to at least two and three-tenths
persons for each acre of land included within its boundaries;

        The question before us is the legislative intent when the General Assembly chose the
word “each” before the word “acre” in the statute. The wording “each acre” clearly shows the
intent for each acre to contain a population density of at least 2.3 persons. It’s assumed the
General Assembly knew the meaning of “each” when they first wrote the statute and recently
amended the statute in 1998. Dictionaries define the word “each” as:

Each • determiner & pronoun every one of two or more people or things, regarded and identified
separately.

Each /i t / det., pron. used to refer to every one of two or more people or things, when you are
thinking about them separately.

Each • adj., pron. every one of two or more considered separately.

        Fayetteville planners calculated the total population and divided that population figure by
the total acreage. This provided an average population density for area #1. City planners did
not calculate the population density for each acre of land within area #1.

       The statute does not say to average the total population across thousands of acres
containing no population to give the appearance of additional urbanization. City planners are
required to calculate actual urbanization to determine which areas are developed for urban
purposes under the appropriate section of § 160A-48(c) or § 160A-48(d).




                                                 2
       I believe the General Assembly designed § 160A-48(c)(1) to qualify housing area and
subdivision type lands since most of those areas typically contain at least 2.3 persons per each
acre of land. If the General Assembly wanted a municipality to average the population would
they not have chosen to use words similar to “average population” or “total acreage” in § 160A-
48(c)(1)? The words “total acreage” are used quite definitively to describe and qualify lands for
involuntary annexation in § 160A-48(c)(2) Population & Subdivision Test and § 160A-48(c)(3)
Use and Subdivision Test.
       The plain and definite meaning of § 160A-48(c)(1) appears clear to me. Each acre of
land must contain a total resident population equal to at least 2.3 persons to qualify as
developed for urban purposes.

     RECENT NC SUPREME COURT DECISION PERTINENT TO ANNEXATION

         In June 2004, the NC Supreme Court ruled on legislative intent of an annexation statute
in Carolina Power & Light Company vs. Asheville. While a different statute was considered in
this case, the thought process determining legislative intent is very much similar to determining
the intent of the population density statute. Excerpts from the NC Supreme Court opinion
contain the following language:

         This case concerns legislative policy and procedure as it relates to undeveloped land
desired to be annexed by a municipal governing board, pursuant to N.C.G.S. § 160A-48 which
defines the “character” of an area to be annexed. Specifically, the issue before this Court on
appeal is the proper interpretation of the exception set forth in N.C.G.S. § 160A- 48(d)(2) as it
relates to areas of land that are not developed for urban purposes, an issue of first impression for
this Court.
         In N.C.G.S. § 160A-48, the General Assembly has carefully specified the standards
which must be met in order for any area to be annexed, so as to prevent municipalities from
extending their boundaries arbitrarily or without due regard for the policy, reasons, and standards
mandated by the legislature.
         The issue before this Court in the instant appeal is a question of law, the proper
interpretation of N.C.G.S. § 160A- 48(d)(2), specifically whether the wording “any combination”
will allow use of only one boundary in the equation, either the “municipal boundary” or the
boundary of an area “developed for urban purposes.”
         “The primary rule of statutory construction is that the intent of the legislature controls the
interpretation of a statute.” Stevenson v. City of Durham, 281 N.C. 300, 303, 188 S.E.2d 281, 283
(1972). The foremost task in statutory interpretation is “'to determine legislative intent while
giving the language of the statute its natural and ordinary meaning unless the context requires
otherwise.'” Spruill v. Lake Phelps Vol. Fire Dep't, Inc., 351 N.C. 318, 320, 523 S.E.2d 672, 674
(2000) (quoting Turlington v. McLeod, 323 N.C. 591, 594, 374 S.E.2d 394, 397 (1988)).
         Where the statutory language is clear and unambiguous, “the Court does not engage in
judicial construction but must apply the statute to give effect to the plain and definite meaning of
the language.” Fowler v. Valencourt, 334 N.C. 345, 348, 435 S.E.2d 530, 532 (1993). If the
language is ambiguous or unclear, the reviewing court must construe the statute in an attempt not
to “defeat or impair the object of the statute . . . if that can reasonably be done without doing
violence to the legislative language.” North Carolina Baptist Hosp., Inc. v. Mitchell, 323 N.C.
528, 532, 374 S.E.2d 844, 846 (1988).



                                                  3
         The crux of the statutory language in question is focused upon the phrase, “to any
combination of the municipal boundary and the boundary of an area or areas developed for urban
purposes as defined in subsection (c).” N.C.G.S. § 160A- 48(d)(2). In considering this wording,
little ambiguity presents itself facially. “Combination” is defined as the “[c]ombined state or
condition of two or more things.” The Oxford English Dictionary, Vol. II, 647 (1961).
“Combine” is defined as “[t]o couple or join two or more things together” or “[t]o unite . . . or
exhibit in union.” Id. at 648.
         In defining areas not developed for urban purposes that nevertheless may be annexed,
subsection (d)(2) clearly specifies a combination of two things, in “any” variation or quantities of
these two entities: the municipal boundary and the boundary of the urban developed area. To
totally exclude one entity in this equation, the boundary with the municipality, fails to yield a
true “combination.” The Court of Appeals' majority opinion appears to rest upon the premise, in
theory at least, that a quantity or value of zero is computable and can, as the statute requires,
unite with something else. This approach ignores the ordinary meaning of the words of the
statute and imposes a theoretically strained interpretation and application.
         This Court has cited the legislative history of annexation laws as demonstrating that the
legislative standard should “'act as a brake only with respect to attempted annexation of large
tracts of agricultural or vacant land where no evidence of urban development can be shown.'”
Lithium Corp. of America, Inc. v. Town of Bessemer City, 261 N.C. 532, 537, 135 S.E.2d 574,
578 (1964) (quoting North Carolina General Assembly, Supplementary Report of the Municipal
Government Study Commission, p. 11 (1959)).
         Furthermore, in 1998 the General Assembly amended the annexation statutes in
numerous ways, including limiting the scope of a city's authority to annex undeveloped acreage
by:…… These steps are evidence the General Assembly's desire to limit or restrict rather than
facilitate annexation.

                 FAYETTEVILLE’S POPULATION DENSITY ANALYSIS

         Fayetteville did not calculate the population density for each acre of land within area #1
boundaries. They simply averaged the total population across the total acres. This fact is public
record found within the city’s Annexation Plan for Services. By using this calculation means,
thousands of acres of undeveloped lands with no population were incorrectly classified “urban”
under the guise of the population density statute.
         Most recently, 10 May 2005, Jason Brady, Fayetteville’s Public Information Officer
wrote an article in the Fayetteville Observer titled “Annexation Plan Follows the Law.” The
article contained the following language:

        “City planners used Census 2000 block-level population data, merged it with the total
numbers of acres in the proposed area, and verified the process with the legal authorities at the
University of North Carolina Institute of Government. Planners used AutoCAD software, an
accepted mapping program in civil engineering, in preparing the maps for the report. The
mathematical process to determine the population density is simple: divide the total number of
acres (16,182) into the total population (37,885), which equals 2.34”.

       Given the 2004 NC Supreme Court opinion in Carolina Power & Light Company vs.
Asheville, the General Assembly’s desire is to limit or restrict rather than facilitate annexation.



                                                  4
Additionally, there is sound case law in NC that the standard for “developed for urban purposes”
is actual urbanization and not reliance on some artificial means of making an annexation area
appear urbanized.
        Did Fayetteville’s application of the population density standard to qualify area #1
developed for urban purposes produce absurd results raising to the level of flouting the intent of
the NC General Assembly’s annexation statutes?

                   AREA #1 POPULATION DENSITY CALCULATIONS

         United States census block data is the preferred data source used to calculate total
population within a specific area at the time the census was taken. However, many census
blocks contain areas of residential properties combined with adjacent lands not yet developed for
residential purposes.
         Mapping professionals have long known and acknowledged census blocks provide a total
population within a specific block and not an acre-by-acre breakdown of population density.
Fayetteville’s planning staff completely ignored this long-standing fact and misused census
block data making area #1 appear more urbanized than it’s actual urbanization at the time the
annexation ordinance was passed in November 2003.
         The maps within this document clearly show Fayetteville’s planning staff did not
calculate the population density for each acre of land within area #1. The first map (pg 6)
identifies census block populations. Red areas are those census blocks with an average
population equal to or greater than 2.3 persons per acre. Green areas are census blocks with an
average population of less than 2.3 persons per acre.
         The amazing result is that only 31.5% of the total census block acres have a population
density of at least 2.3 persons per acre. That means 68.5% of the census block acres contain a
population density of less than 2.3 persons per acre. See Graphic #1 on page 6.
         Did Fayetteville planners know this and therefore choose to average the total population
across the total acres to give area #1 an appearance of excessive urbanization? Why did
Fayetteville not calculate or determine actual urbanization for each acre of land contained within
area #1?
         Additionally, Fayetteville’s population density calculation procedures are noncompliant
with the plane language of § 160A-48(c). That statute explicitly states….. “Area of streets and
street rights-of-way shall not be used to determine total acreage under this section.”
         Fayetteville planners did not take the time to subtract areas of streets and street rights-of-
ways in their population density calculations. They simply averaged the total population across
the total acres versus actually calculating the population density for each acre of land as directed
by § 160A-48(c)(1).
         Mapping professionals know ArcGIS/AutoCAD files can be manipulated and displayed
to show wide and varying results. Did Fayetteville Planners misuse digital census mapping files
to create the appearance of excessive urbanization and not actual urbanization for Phase V of
Annexation area #1?
         Graphic #1 on the next page looks solely at census block average population densities.




                                                  5
                     GRAPHIC #1 (Census Block Average Populations)

        Census block data alone cannot always be used to determine actual urbanization for each
acre of land within block boundaries. Using Fayetteville’s calculation method, this census block
map can only be used to show total population per census block divided by total acres resulting
in an averaged population density. Not a population density for each acre within each block.
        A more accurate way to calculate population density is to identify those areas clearly
residential (include isolated homes on rural lands) and calculate the actual acreage of those
properties. Then use census block data for population, average family size / household size to
calculate population density for those residential properties within census block boundaries.
        To see actual parcels used for residential purposes, see graphic #2 on the next page.


                                               6
                               AREA #1 RESIDENTIAL LANDS

       The vast majority of the population lives in residential areas. Granted, there are a few
farmhouses and isolated houses scattered throughout area #1. The General Assembly crafted an
unambiguous definition for lands used for residential purposes.
§ 160A-53. Definitions.
       (2) "Used for residential purposes" shall mean any lot or tract five acres or less in size on
which is constructed a habitable dwelling unit. (1959, c.1009, s. 9; 1973, c. 426, s. 74.)
       Only 41% of the parcel acreage meets the definition for residential lands.




                              GRAPHIC #2 (Residential Parcels)




                                                 7
        The residential parcels graphic, page 7, clearly shows only 41% of the total parcel
acreage (5,706 acres) is used for residential purposes. Compare that to the census block
overview graphic, page 6, and one quickly visualizes over half of the total acreage (>8,000 acres)
does not have a population of at least 2.3 persons per acre. Thousands of acres actually contain
no population whatsoever.
        By using the average population approach, Fayetteville took neighborhoods with dense
populations found on 5,706 acres to involuntarily annex an additional 8,000+ acres of
nonresidential lands. Clearly this could not be the intent of the General Assembly when they
crafted the wording of the Population Density Statute § 160A-48(c)(1) where each acre of land
must have at least 2.3 persons.

                         FAYETTEVILLE LANDUSE MISTAKES:

        I also question if Fayetteville’s planners conducted a less than accurate land use analysis
of area #1 in an attempt to make it appear more urban than the landmass’ actual level of
development? North Carolina Statutes concerning involuntary annexation require the annexing
municipality under § 160A-47(c)(1) to provide a map of the general land use pattern of the area
to be annexed.
        Fayetteville’s Land Use map is grossly inaccurate. It falsely misclassifies 112 parcels of
rural land as residential. Those 112 parcels of misclassified lands equal 2,986 acres. That
equates to a mistake of 21% for the total land use parcel acreage. (2,986 / 13,900 = 21.48%) See
Graphic #3 on page 9.
        While the statute is silent as to accuracy requirements for a Land Use pattern map, one
might infer a 21% mistake falls outside acceptable standards for municipal mapping. A more
appropriate margin of error might be 5-10%, which is consistent with error thresholds for
population and land estimates under § 160A-54.
        The purpose of § 160A-54 is: In determining population and degree of land subdivision
for purposes of meeting the requirements of G.S. 160A-48, the municipality shall use methods
calculated to provide reasonably accurate results.
        The statutory definition for residential lands is found in § 160A-53(2). It states: "Used
for residential purposes" shall mean any lot or tract five acres or less in size on which is
constructed a habitable dwelling unit. (1959, c. 1009, s. 9; 1973, c. 426, s. 74.)
        It appears Fayetteville planners combined land use with land zoning to make area #1
appear more residential than what actually exists. A mistake of almost 3,000 acres should not be
considered reasonably accurate.

       To view Fayetteville’s inaccurate Land Use Map See Graphic #4 on page 10.

       An itemized list of each parcel Fayetteville misclassified as “residential” begins on page
eleven (pg. 11), after Fayetteville’s inaccurate Land Use Map.




                                                8
                   GRAPHIC #3 (City Misclassified Residential Parcels)




                   GRAPHIC #3 (City Misclassified Residential Parcels)


        Compare graphic #3 above with graphic #4 below side-by-side to visualize the gross
mistakes found in Fayetteville’s Land Use map. Professional planning staffs have no excuse for
this level of inaccuracy. One can only question how and why such gross inaccuracies were ever
made in the first place




                                               9
GRAPHIC #4 (Fayetteville’s Land Use Map)




GRAPHIC #4 (Fayetteville’s Land Use Map)



                  10
PARCELS > 5 ACRES FAYTTEVILLE MISCLASSIFIED AS RESIDENTIAL

         NO     NAD83_PIN     ACRE LND_ZONING FARM_PGR
          1   9487-88-5779-   15.51   R6A
          2   9497-48-0515-   249.24   RR         Y
          3   9487-97-6915-   26.92    RR
          4   9487-36-6817-   17.93    R6         Y
          5   9487-47-3064-   17.88    RR
          6   9487-75-2848-   11.87   R6A
          7   9477-75-6039-   49.07    A1
          8   9487-34-5436-   18.18   R6A
          9   9487-55-5092-   12.83    RR         Y
         10   9497-14-8195-   66.25    RR         Y
         11   9477-74-0388-   12.35    RR
         12   9487-34-0423-   11.32   R6A
         13   9477-64-4200-   13.18    RR
         14   9497-13-0797-   46.37    RR         Y
         15   9487-74-7238-   13.17    RR
         16   9487-63-9522-    5.47    RR         Y
         17   9477-82-1090-   37.34    RR
         18   9477-82-1845-    7.13    RR
         19   9497-02-7475-   47.00    RR         Y
         20   9497-72-8316-   84.71   PND
         21   9487-11-3927-   29.56    RR         Y
         22   9487-52-6393-    8.57    RR
         23   9497-01-6883-   41.71    RR         Y
         24   9477-91-3673-   36.11    RR         Y
         25   9497-31-0007-   26.40               Y
         26   9487-50-0936-   14.06    RR
         27   9497-01-5104-   47.61    RR         Y
         28   9477-90-9027-   16.82    RR
         29   9476-89-2058-   51.38    RR         Y
         30   9486-19-3025-   12.82    RR         Y
         31   9496-59-4051-    9.57    R10
         32   9486-59-1385-    6.69    R15
         33   9476-58-0928-   24.15    RR         Y
         34   0406-18-9669-    5.96   R5A
         35   9486-98-5293-   258.54   RR         Y
         36   9496-38-5398-    7.70    R10
         37   0406-28-6029-   20.65    R6
         38   9486-18-8353-    6.99    RR
         39   9486-78-4440-   10.28    RR
         40   9496-27-8791-    5.07    R10
         41   0406-87-0410-    6.56   R6A
         42   9486-06-2997-   19.24    R15        Y
         43   9496-27-4025-    5.44    RR
         44   9496-36-5077-   21.04    R10
         45   9486-45-8654-   10.47    RR


                                 11
NO     NAD83_PIN     ACRE LND_ZONING FARM_PGR
46   9476-74-4681-   34.78    RR
47   9496-65-7078-    8.61    R10
48   0406-54-1854-    8.26    R10
49   9486-02-5503-   407.40   RR         Y
50   9476-84-8429-    5.02    RR
51   0406-83-2812-   23.18    RR
52   9486-53-2158-   38.66    RR         Y
53   9486-33-6444-    6.53   PND
54   9496-63-9134-   19.66    R10
55   9486-42-7111-   27.80    RR         Y
56   9496-92-6068-    7.57    R10
57   9486-41-2122-   19.68    RR         Y
58   9496-20-2168-   26.11    RR         Y
59   9496-30-0954-    5.54    CD
60   9496-30-2254-    9.42    RR
61   9485-39-2903-   25.35    RR         Y
62   9486-60-4413-    5.98    RR
63   9496-30-5000-    5.42    RR
64   9485-49-8942-   12.72    RR         Y
65   9495-39-5485-    9.03    RR
66   9495-78-7538-   116.04   RR         Y
67   9485-19-9322-   26.28    RR         Y
68   9485-09-6386-   34.00    RR         Y
69   9495-79-9728-    6.97    CP
70   9485-89-9682-   76.11    R10        Y
71   9495-09-4525-    5.01    RR
72   9485-39-6471-   10.22    RR         Y
73   9495-99-2412-    6.51    R10
74   9495-98-7959-   21.70   R6A
75   9485-38-0877-    9.63    RR         Y
76   9485-48-5435-   19.91    RR         Y
77   9495-08-5520-    5.58    RR
78   9495-17-7993-   20.46    RR         Y
79   9495-98-0097-    7.06    R10
80   9495-38-2005-    8.29    RR
81   9495-37-4525-    6.97   R6A
82   0405-17-3184-   10.60    RR
83   0405-16-2701-    5.08    RR
84   9495-96-4204-   15.64    RR
85   9485-86-2078-   11.88    RR
86   0405-06-4255-   10.70    RR
87   9495-26-5278-    6.19    RR
88   9495-95-6879-   15.31    RR
89   0405-05-8739-   13.04    RR
90   9485-65-9462-   14.18    RR         Y
91   9485-75-6265-   15.17    RR
92   9495-05-5622-   15.23    RR



                        12
                    NO      NAD83_PIN   ACRE LND_ZONING FARM_PGR
                     93   0405-04-2993- 26.77    R10        Y
                     94   9485-85-1079-  5.55    RR
                     95   9495-95-1185-  9.77    RR
                     96   9485-94-6985-  5.83    RR
                     97   9485-54-0459- 14.83    RR         Y
                     98   9485-34-8741-  5.03    RR
                     99   9485-84-1310- 13.65    RR
                    100   9495-04-6456-  5.03    RR
                    101   9495-34-5201- 53.66    RR         Y
                    102   9485-93-4779- 10.59    RR
                    103   9485-34-9005- 14.50    RR
                    104   9495-03-5719-  8.67   R6A
                    105   9485-73-5850-  6.71    R10
                    106   9485-83-3863- 20.13    RR         Y
                    107   9485-53-1157- 13.72    RR
                    108   9485-52-3899- 21.31    RR
                    109   9485-52-8302- 42.15    RR         Y
                    110   9495-01-1581-  7.06    RR
                    111   9494-19-7662-  8.26    RR
                    112   9494-09-7426-  5.62    RR
                          TOTAL ACRES 2986.43

                EXCESSIVE UNDEVELOPED LANDS WITHIN AREA #1:

        With the apparent misapplication of the population density standard, it seems Fayetteville
planners were also able to circumvent statutory restrictions found in § 160A-48(d) for
involuntarily annexing intervening undeveloped lands. The General Assembly has long realized
undeveloped lands exist surrounded by and or adjacent to lands developed for urban purposes.
Some of these undeveloped lands may need to be annexed as necessary land connections to
enable the city to extend required city services.
        Therefore, the General Assembly carefully crafted the wording of § 160A-48(d). The
General Assembly also explicitly limited these necessary land connections to twenty-five percent
(25%) of the total area to be annexed. The wording of § 160A-48(d) is below.

§ 160A-48. Character of area to be annexed.
  (d) In addition to areas developed for urban purposes, a governing board
may include in the area to be annexed any area which does not meet the
requirements of subsection (c) if such area either:
       (1) Lies between the municipal boundary and an area developed for
urban purposes so that the area developed for urban purposes is either not
adjacent to the municipal boundary or cannot be served by the municipality
without extending services and/or water and/or sewer lines through such
sparsely developed area; or
       (2) Is adjacent, on at least sixty percent (60%) of its external
boundary, to any combination of the municipal boundary and the boundary of an
area or areas developed for urban purposes as defined in subsection (c).
        The purpose of this subsection is to permit municipal governing boards
to extend corporate limits to include all nearby areas developed for urban


                                               13
purposes and where necessary to include areas which at the time of annexation
are not yet developed for urban purposes but which constitute necessary land
connections between the municipality and areas developed for urban purposes
or between two or more areas developed for urban purposes. For purposes of
this subsection, "necessary land connection" means an area that does not
exceed twenty-five percent (25%) of the total area to be annexed.

       Did Fayetteville ignore the General Assembly’s restrictions for involuntarily annexing
undeveloped lands? Over 7,000 parcel acres (51%) of area #1 is undeveloped. This is clearly
outside the intent of the General Assembly’s annexation statutes. Specifically, § 160A-48(d)(2)
and the NC Supreme Court’s recent opinion in the Carolina Power & Light Company vs.
Asheville case.              (Graphic #5 Undeveloped Lands)




                             GRAPHIC #5 (Undeveloped Lands)



                                               14
  DID FAYETTEVILLE SIDESTEP OTHER QUALIFYING CRITERIA OF § 160A-48

        Besides the population density statute for each acre, two (2) other qualifying criteria to
determine urbanization under § 160A-48(c) directly apply to area #1: Population & Subdivision
and Use & subdivision. However, cities only have to meet one criteria listed under all of §
160A-48(c) to qualify a landmass developed for urban purposes. Fayetteville chose to rely
solely on the Population Density Test as addressed previously in this document.
        The next three (3) maps analyze the Population & Subdivision and Use & Subdivision
tests. Fayetteville determined these two statutes are not applicable since area #1 fully qualified
under population density (§ 160A-48(c)(1)).
        The overarching intent of § 160A-48(c) is to limit properties qualifying as
“Developed for Urban Purposes.” This statute sets concise restrictions on what lands qualify
for involuntarily annexation. The General Assembly’s intent is clear that lands must meet
specific levels of actual urbanization before they can be involuntarily annexed.
        The one strong and repeated criterion in § 160A-48(c) is the General Assembly’s use of
the words “each acre” and “total acreage.” These words unambiguously convey the General
Assembly’s directive for minimum urbanization standards of each acre and the total acreage of
an area considered for involuntary annexation. Simple analysis of the Population & Subdivision
and Use & Subdivision qualifying criteria clearly shows area #1 is not developed for urban
purposes to the statutory extent necessary to qualify under other provisions of § 160A-48(c).

§ 160A-48(c)(2) Population & Subdivision Test

         Has a total resident population equal to at least one person for each acre of land
included within its boundaries, and is subdivided into lots and tracts such that at least sixty
percent (60%) of the total acreage consists of lots and tracts three acres or less in size and such
that at least sixty-five percent (65%) of the total number of lots and tracts are one acre or less in
size.

       Analysis of § 160A-48(c)(2) helps show area #1 is not developed for urban purposes
under this statute.

        Graphic #6 on page 16 looks at census block average population densities according to
Fayetteville’s average population procedures. It clearly shows over 5,500 census block acreage
contain a population of less than 1 person per acre. Additionally, over 4,800 census block
acreage contain an average population density of 1 to < 2.3 persons per acre.

         Graphic #7 on page 17 shows only 41% of the total acreage consists of lots and tracts
three acres or less in size. This fails to meet the 60% total acreage minimum standard for this
statute.

        In total, area #1 fails to meet two of the three standards under the Population and
Subdivision test. Area #1 does not have at least 1 person for each acre of land (graphic #6) and
less than 60% of the total acreage consists of lots and tracts three acres or less in size (graphic
#7).




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               GRAPHIC #6 (Census Block Average Population Breakdown)

       This graphic clearly shows 5,586 census block acres with a population of less than 1
person. The vast majority of those acres have a resident population of zero (0). Given this fact,
one might infer Fayetteville misapplied the population density statute to make area #1 appear
urbanized instead of determining the area’s actual level of urbanization. Fayetteville averaged
the population across thousands of undeveloped making this area appear to have at least 2.3
persons on each acre of land. Simply not true.




                                               16
                        GRAPHIC #7 (Population & Subdivision Test)


       Graphic #7 shows area #1 does not meet the second requirement of the Population and
Subdivision Test. Less than 41% of the total acreage consists of lots and tracks 3 acres or less in
size. The minimum requirement is 60%.




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§ 160A-48(c)(3) Use & Subdivision Test States:

       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 three
acres or less in size.




                            GRAPHIC #8 (Use & Subdivision Test)



                                                18
        Graphic #8 above (page 18) clearly shows area #1 does not meet the second requirement
of the Use & Subdivision test. Only 36% of the total acreage is subdivided into lots or tracts 3
acres or less not counting acreage used for commercial, industrial, government, or institutional
purposes. The minimum requirement is 60%.

                    ADDITIONAL STATUTORY CONSIDERATIONS:

       It appears Fayetteville also exceeded the statutory 5% accuracy threshold for “Total
Area” calculations provided under NCGS 160A-54(2). That statute states:

§ 160A-54. Population and land estimates.
       (2) As to total area if the estimate is based on an actual survey, or on county tax maps or
records, or on aerial photographs, or on some other reasonably reliable map used for official
purposes by a governmental agency, unless the petitioners on appeal demonstrate that such
estimates are in error in the amount of five percent (5%) or more.

        Fayetteville’s Amended Annexation Report and Plan of Services, page 10, figure 1.8
(Areas Proposed for Annexation) identifies area #1 containing 16,182 acres of total land.
Additionally, Appendix E, page 9 (metes and bounds) of the same document also identifies area
#1 containing 16,182 acres.
        Fayetteville settled with Gates Four after initial publication of the city’s Amended
Annexation Report and Plan of Services. The Gates Four metes and bounds legal description
identifies 841 acres of total land. 16,182 – 841 = 15,341 acres.
        Based on these facts, Fayetteville’s annexation ordinance appears to exceed the “Total
Area” 5% threshold by 0.2%. 15,341/16,182 = 94.8% or a 5.2% error. The statutory standard is
5%.
        This fact is simply an additional item one might use to raise another question. Did
Fayetteville planners truly follow the General Assembly’s guidance for the involuntary
annexation of area #1 in Phase V of Annexation?

                                          SUMMARY:

       This document raises several questions concerning Fayetteville urbanization analysis for
area #1 in the city’s Phase V of Annexation. Hopefully, this document helps visualize and
address questions if the General Assembly ever revisits the involuntary annexation statutes.
    Below is a list of questions that most likely will never be answered in a court of law:

   1. Did Fayetteville misapply the Population Density statute?
   2. Did Fayetteville calculate the population density for each acre of land?
   3. Did Fayetteville simply calculate an averaged population density?
   4. Did Fayetteville misuse census block data resulting in area #1 appearing excessively
      urbanized?
   5. Did Fayetteville calculate actual urbanization for area #1?
   6. Did Fayetteville misclassify almost 3,000 acres of rural land as “residential”?
   7. Did Fayetteville circumvent statutory restrictions for annexing undeveloped lands?




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8. Did Fayetteville legally include some 7,000+ acres of undeveloped lands under the
    population density statue?
9. Did Fayetteville flout the General Assembly’s intent for involuntary annexation?
10. Should Fayetteville’s involuntary annexation of area #1 be declared null and void and
    totally removed from the city’s Phase V Annexation Ordinance?

                                      CONCLUSION:

    Fayetteville’s area #1 of their Phase V of Annexation must be looked at against all the
statutory standards of § 160A-48(c) and § 160A-48(d). The General Assembly carefully
crafted the wording of these statutes to limit what lands a municipality can involuntarily
annex.
    To fully understand and appreciate the intent of this legislation one must analyze the
plain and definite meaning of the statute’s language. The NC Supreme Court ruled…. “The
foremost task in statutory interpretation is “'to determine legislative intent while giving
the language of the statute its natural and ordinary meaning unless the context requires
otherwise.”

   Below is a comparison of the words in statutes applicable to involuntary annexation.

    § 160A-48(c)(1) Population Density Test. The words “each acre” are used to qualify a
total resident population of at least 2.3 persons.

   § 160A-48(c)(2) Population & Subdivision Test. The words “each acre” are used to
qualify a total resident population of at least 1 person. The words “total acreage” is used to
qualify lots and tracks 3 acres or less in size.

    § 160A-48(c)(3) Use & Subdivision Test. The words “total acreage” is used to qualify
lots and tracks 3 acres or less in size not counting the acreage used for commercial,
industrial, government, or institutional purposes.

   § 160A-48(d)(2) Undeveloped Lands. The words “total area” is used to qualify
necessary land connections (undeveloped lands) which cannot exceed 25%.

   Did Fayetteville take liberty to infer the words “total resident population” used in §
160A-48(c)(1) as license to average that total population over the total acreage of area #1?

    The General Assembly deliberately chose when to use the words “each are” and “total
acreage” in their involuntary annexation statutes. Each means each and total means total.
No interpretation is needed to determine the intent of General Assembly’s use of these
words.
    It appears to me Area #1 clearly does not contain at least 2.3 persons for “each acre” of
land and is not developed to the statutory level qualifying it for involuntary annexation under
the Population Density Standard.
    So, did Fayetteville misapply the Population Density statute and make area #1 appear
more urban than it’s actual urbanization? I tend to believe they did.



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