dissenting.
The majority holds that the determination of prior jurisdiction raised by competing resolutions of intent is a justiciable controversy under the Declaratory Judgment Act. I agree. The majority also holds that “the elements of N.C.G.S. § 160A-36(b) are applicable to resolutions of intent, and that those elements are ‘essential elements’ with regard to ‘prior jurisdiction’ determination.” I disagree with this holding. However, assuming arguendo that N.C.G.S. § 160A-36(b) applies to resolutions of intent, I would hold that a resolution of intent that inadvertently includes two acres already within the boundaries of another municipality does not preclude a finding of substantial compliance with section 160A-36(b).
In the instant case, the Town of East Spencer passed a resolution stating its intent to consider annexation of 133 acres contiguous to its boundaries. The majority holds that because approximately two acres of the property were within the boundaries of the Town of Spencer, the resolution of intent was not in substantial compliance with the annexation statute and could not give the Town of East Spencer prior jurisdiction as to any of the property sought to be annexed.
In City of Kannapolis v. City of Concord, a majority of this Court held that the failure of the City of Kannapolis to specify in its initial resolution of intent that the effective date of the involuntary annexation would be at least one year from the date of passage of the annexation ordinance was an inconsequential irregularity that did not invalidate the annexation, where the correct annexation date was set forth in the annexation ordinance. 326 N.C. 512, 519, 391 S.E.2d 493, 497 (1990). In concluding that the failure to include the effective date in the resolution of intent was an inconsequential irregularity that did not preclude substantial compliance with the annexation statute and materially injure the City of Concord, this Court relied upon the following quote:
Absolute and literal compliance with a statute enacted describing the conditions of annexation is unnecessary; substantial compliance only is required... . . The reason is clear. Absolute and literal compliance with the statute would result in defeating the purpose of the statute in situations where no one has been or could be misled.
*137In re Annexation Ordinance, 278 N.C. 641, 648, 180 S.E.2d 851, 856 [(1971)] (quoting State v. Town of Benson, Cochise County, 95 Ariz. 107, 108, 387 P.2d 807, 808 (1963)).
City of Kannapolis, 326 N.C. at 518, 391 S.E.2d at 497 (alteration in original).
Likewise, the question here is whether the resolution of intent is in substantial compliance with the annexation statute. In Kannapolis, the missing effective date was an express requirement of N.C.G.S. § 160A-49Q). Nevertheless, the majority in Kannapolis held that the failure to include the effective date in the resolution of intent was not a fatal flaw but could be corrected in the annexation ordinance. Similarly, the inclusion of the extra two acres in the 133-acre tract described in the resolution of intent here was not a fatal flaw. The Town of Spencer could not be materially prejudiced because it was legally impossible for the Town of East Spencer to annex the additional two acres that were already a part of the Town of Spencer. Clearly, the inadvertent error in the description of the property could have been corrected without affecting the validity of the resolution of intent as to the remaining 131-acre tract.
The Town of East Spencer filed a valid resolution of intent in substantial compliance with N.C.G.S. § 160A-36(b) by describing the boundaries of the area under consideration and establishing priority in jurisdiction and a right to annex the disputed territory. Therefore, I respectfully dissent.