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COA: County Has No Statutory Authority to Impose School Impact Fee on Land Developers

By Sean E. Andrussier

Today the COA held that a county did not have statutory authority to impose school impact fees on land developers. The case is Union Land Owners Association v. County of Union.

Union County enacted the Adequate Public Facilities Ordinance (APFO), which assessed the impact of residential development on schools and spelled out guidelines for determining whether the county would grant or deny building permits. The APFO also established procedures for calculating fees owed by residential land developers if their developments would overburden nearby schools.

The COA held that Union County had no authority to enact the APFO because it did not fall under any of the statutory powers given to the county by the General Assembly. The statute relating to the county's police power (N.C. Gen. Stat. Section 153A-121) did not provide an independent basis for the APFO, because the fees assessed in the APFO related to the county's power to regulate the development of real estate, and instead implicated the zoning and subdivision statutes.

The COA further explained that the APFO could also not have been enacted under the county's zoning powers delineated in N.C. Gen. Stat. Sections 153A-340 and 153A-341, which only allow a zoning ordinance to "restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes."

Finally, the COA held that the county's subdivision powers did not allow it to enact the APFO, noting that the subdivision statutes (Sections 153A-330 et seq.) do not authorize a county to adopt a land use regulation ordinance under which a developer may be forced to pay money.

The COA concluded that the General Assembly had not given the County the specific power to levy the fees detailed in the APFO, and the County could not shift its constitutional duty to fund public schools onto land developers through a impact fee.

Full post as published by North Carolina Appellate Blog on December 08, 2009 (boomark / email).