Properties v. County Of Cabarrus

LANVALE PROPERTIES, LLC and

CABARRUS COUNTY BUILDING INDUSTRY ASSOCIATION, Plaintiffs,

v.COUNTY OF CABARRUS and CITY OF LOCUST, Defendants.

MARDAN IV, Plaintiff,

v.COUNTY OF CABARRUS, Defendant.

CRAFT DEVELOPMENT, LLC, Plaintiff,

v.COUNTY OF CABARRUS, Defendant.

NO. COA09-1610

NO. COA09-1611

NO. COA0 9-1621

No. 08 CVS 1950

No. 08 CVS 1951

No. 08 CVS 1244

North Carolina Court Of Appeals

Filed: 7 September 2010

Ferguson, Scarborough, Hayes, Hawkins & DeMay, P.A., by James E. Scarborough and James R. DeMay, for plaintiffs-appellees.

The Brough Law Firm, by G. Nicholas Herman and Michael B. Brough; and Richard M. Koch, for defendant-appellant County of Cabarrus.

Hartsell & Williams, P.A., by Christy E. Wilhelm and Fletcher Hartsell, for defendant-appellee City of Locust.

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Appeal by defendant from order entered 19 August 2008 by Judge Mark E. Klass and order entered 17 August 2009 by Judge W. David Lee in Cabarrus County Superior Court. Heard in the Court of Appeals 8 June 2010.

HUNTER, Robert C, Judge.

This appeal arises out of plaintiffs' — Lanvale Properties, LLC, Cabarrus County Building Industry Association ("CCBIA"), Mardan IV, LLC, and Craft Development, LLC — actions challenging the validity of defendant Cabarrus County's adequate public facilities ordinance ("APFO"). As the issues presented in these separate appeals involve common questions of law, we consolidate the appeals for purposes of decision under Rule 40 of the Rules of Appellate Procedure.

The County assigns error to the trial court's granting summary judgment in favor of plaintiffs, arguing that the trial court erred in concluding that (1) plaintiffs' claims were not barred by the statute of limitations and (2) the County's APFO is not authorized by the County's general zoning and subdivision powers. As each of these contentions has been rejected by a prior panel of this Court, we affirm.

Facts

In recent years, North Carolina has experienced significant population growth, necessitating the building of additional public schools by local governments. In response to the burgeoningstudent population, the Cabarrus County Board of Commissioners ("BOC") adopted an APFO in January 1998 as part of its subdivision regulations. The purpose of the APFO is to assist the County in determining whether to issue or deny development permits. The APFO provides county planners with a methodology for "review[ing] each subdivision, multi-family development, and mobile home park to determine if public facilities[, including public schools,] are adequate to serve that development." According to Section 15-7(1) of the APFO, if the BOC determines that existing public schools are adequate to support the proposed development, the proposal is approved without the imposition of any conditions. If, however, the BOC determines that school facilities are inadequate to accommodate the project, the BOC may deny the application or, alternatively, approve the application subject to conditions designed to mitigate the impact on school capacity. Section 15-7(3) specifies the conditions the County may impose: (1) deferring the proposed development until adequate school facilities are available; (2) phasing the development "so that future increments of development are not constructed until future capacity becomes available"; (3) reducing the scope of the development to a level consistent with available school capacity; (4) constructing school facilities by the developer; (5) allowing the development to proceed if the developer consents to "mitigation measures," such as the payment of a fee per residential unit, known as a "voluntary mitigation payment" ("VMP"); or (6) imposing any other "reasonablecondition[]" to ensure adequate school capacity given the forecasted impact of the development.

On 25 August 2003, the BOC adopted a "Resolution to Create a Policy for the Advancement of School Adequacy," which stated that although "new development continues to be approved within the unincorporated areas of Cabarrus County[,] after a review of the adequacy of services," the BOC "would like for all new residential development in both incorporated and unincorporated areas of Cabarrus County to be reviewed for school adequacy." On 30 June 2004, the General Assembly enacted House Bill 224, which provides:

Notwithstanding the provisions of Article 19 of Chapter 160A of the General Statutes, the County of Cabarrus or any municipality therein may enforce, within its jurisdiction, any provision of the school adequacy review performed under the Cabarrus County Subdivision Regulations, including approval of a method to address any inadequacy that may be identified as part of that review.

H.B. 224, ch. 39, sec. 5, 2004 N.C. Sess. Laws ("House Bill 224"). In response to House Bill 224, the BOC adopted a resolution that expanded application of the APFO to all proposed developments within the incorporated areas of the County as well as the unincorporated areas. On 20 August 2007, the BOC adopted a resolution moving the County's APFO from its subdivision ordinance into its zoning ordinance and subsequently amended the subdivision ordinance to incorporate the APFO by reference.

Lanvale Properties owns a 54 acre tract of land in the City of Locust that it intends to develop into a single-family residential subdivision. Mardan IV similarly owns a 11.23 acre tract in the City of Concord, which it plans to develop into a 168-unit apartment project. Craft Development likewise owns a 15.56 acre tract in the Town of Midland, intending to develop the property into a multi-family project. Between 4 April 2008 and 22 May 2008, each plaintiff filed a complaint against the County, ¹ alleging that the County "will not allow development of plaintiff's land and will withhold approvals unless plaintiff complies with the county's APFO and enters into a 'consent agreement' with the county." Plaintiffs requested, among other forms of relief, a declaratory judgment declaring that the County lacked the authority to adopt its APFO and that the ordinance was invalid. The County filed an answer generally denying plaintiffs' claims and moving to dismiss the complaints for failure to state a claim for relief, lack of personal and subject-matter jurisdiction, and being barred by the statute of limitations. Lanvale Properties subsequently filed a motion to consolidate all three cases and CCBIA, a "trade organization consisting of members who are directly or indirectly involved in the building industry in Cabarrus County," filed a motion to intervene in the lawsuit as a plaintiff.

After conducting a hearing on 21 July 2008 regarding the parties' motions, the trial court entered three separate orders on 19 August 2008 (1) consolidating the three cases; (2) allowing CCBIA to intervene; and (3) denying the County's motion to dismiss. In May 2009, the parties filed cross-motions for summary judgment, and, after conducting a hearing on the parties' motions on 1 June 2 009, the trial court entered an order on 17 August 2009 denying the County's motion for summary judgment and granting plaintiffs' motion. The County timely appealed to this Court.

Standard of Review

An appellate court "review[s] a trial court's order for summary judgment de novo to determine whether there is a 'genuine issue of material fact' and whether either party is 'entitled to judgment as a matter of law.'" Robins v. Town of Hillsborough, 361 N.C. 193, 196, 639 S.E.2d 421, 423 (2007) (quoting Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003)); N.C. R. Civ. P. 56(c). Where, as here, there is no dispute as to any material fact, the dispositive issue on appeal is whether the trial court properly concluded that plaintiffs are entitled to judgment as a matter of law. See Coventry Woods Neighborhood Ass'n, Inc. v. City of Charlotte, _ N.C. App. _, _, 688 S.E.2d 538, 542 (2010) ("[G]iven that no party has claimed that the record reveals the presence of any disputed issue of material fact, the ultimate issue that we must decide in order to address the issues raised by Plaintiffs' appeal is whether the trial court correctly concluded that Defendants were entitled to judgment as a matter of law.").

Validity of APFO

The County contends that the trial court erroneously concluded that "there is no statutory authority for the enactment of the APFO under the general zoning and general subdivision powers delegated to the Defendant County...." The County acknowledges in itsbrief, however, that this Court recently "rejected" these arguments in Union Land Owners Ass'n v. County of Union, _ N.C. App. _, _, 689 S.E.2d 504, 507-08 (2009) (holding that county's APFO, which included imposition of a school impact fee as a condition of approving new developments, was not authorized by county's general zoning or subdivision powers). The County nonetheless presents its arguments in its appellant's brief "for purposes of preserving further appellate review...." Here, Cabarrus County's arguments asserted in support of upholding its APFO are identical to Union County's contentions that this Court rejected in Union Land Owners Ass'n. As we are bound by Union Land Owners Ass'n, In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), we conclude that Cabarrus County lacks the authority to adopt its APFO pursuant to its general zoning or subdivision powers. See also Amward Homes, Inc. V. Town of Cary, __ N.C. App. __, __, __ S.E.2d _, _, 2010 N.C. App. LEXIS 1440, *27, 2010 WL 3001393, *10 (COA09-923) (Aug. 3, 2010) (concluding, based on Union Land Owners Ass'n, that municipality's collection of school impact fee under "Adequate Public School Facilities" ordinance "illegally shifted the burden of paying for public education to the...