Lead Opinion
In this appeal we consider whether defendant Cabarrus County (“the County”) had the authority pursuant to its general zoning powers or, in the alternative, a 2004 law enacted by the General Assembly, to adopt an adequate public facilities ordinance (“APFO”) that effectively conditions approval of new residential construction projects on developers paying a fee to subsidize new school construction to prevent overcrowding in the County’s public schools. Because we hold that the County lacked this authority, we affirm the Court of Appeals.
I
Concerned about the effect of explosive population growth on the County’s ability to provide adequate public facilities for its citizens, the Cabarrus County Board of Commissioners (“the Board”) adopted an initial APFO in January 1998. In that form the APFO, which was enacted as an amendment to the County’s subdivision ordinance, conditioned County approval of new residential developments on the existence of sufficient public facilities to support the developments. In concise language the ordinance stated: “To ensure public health, safety and welfare the [Cabarrus County] Planning and Zoning Commission shall review each subdivision, multi-family development, and mobile home park to determine if public facilities are adequate to serve that development.” Cabarrus County, N.C., Subdivision Ordinance ch. 4. § 17 (Jan. 1998). Pursuant to the ordinance, the County’s Planning and Zoning Commission (“the Commission”) reviewed all proposed residential developments, except those located within the territorial jurisdictions of Concord and Kannapolis,
The APFO first was applied when Westbrook Highland Creek, LLC (“Westbrook”) sought preliminary approval from the Commission for a single family development of approximately 800 units located in an unincorporated area of the County. The Commission denied Westbrook’s application based upon insufficient public school capacity. Westbrook appealed to the Board, which ultimately approved the development after Westbrook agreed to place $400,000.00 — $500.00 per unit — into an escrow account for the purchase of property for a new high school.
Over the next five years, the Commission denied preliminary approval applications for a number of proposed developments based upon insufficient public school capacity. However, as with the Westbrook development, the Board ultimately approved these developments on appeal once developers executed consent agreements designed to mitigate the impact of their developments on public school capacity. Developers typically agreed to pay an adequate public facilities fee of $500.00 per residential unit; however, some developers agreed to make an in-kind donation of land for future school sites or construct improvements to existing school facilities.
Following the APFO’s enactment, county staff began monitoring the number of new residential developments being built in Concord and Kannapolis because these municipalities were not cooperating fully with the County in enforcing the APFO. In some instances, these cities voluntarily annexed residential
In part to address these frustrations, the Board adopted a resolution on 25 August 2003 expressing its desire that all Cabarrus County municipalities should cooperate with the County in enforcing the APFO. Cabarrus County, N.C., Res. No. 2003-26 (Aug. 25, 2003). The resolution also increased the minimum value of the adequate public facilities fee from $500.00 per residential unit to not less than $1,008.00 per unit. Id. Further, the resolution defined the term “school adequacy” to mean “estimated enrollment not exceeding 110% of capacity as determined by the Kannapolis and Cábarrus School Systems.” Id.
On 30 June 2004, the General Assembly enacted Chapter 39 of the 2004 North Carolina Session Laws (“Session Law 2004-39” or “the session law”), which authorized the annexation of several properties in Cabarrus County. Section 5 of the session law attempted to clarify the authority of municipalities to enforce the APFO. Act of June 30, 2004, ch. 39, sec. 5, 2004 N.C. Sess. Laws 42, 47. About a month and a half later, during its 16 August 2004 meeting, the Board adopted a resolution linking the APFO to the session law. See Cabarrus County, N.C., Res. No. 2004-30 (Aug. 16, 2004).
Over the next few months, the Board made several more revisions to the APFO. On 20 September 2004, the Board adopted a resolution that increased the value of the adequate public facilities fee from not less than $1,008.00 per residential unit to not less than $4,034.00 per single family unit and $1,331.00 per multifamily unit. Cabarrus County, N.C., Res. No. 2004-37 (Sept. 20, 2004). The resolution also indexed the fee to reflect annual changes in the cost of public school construction. Id. During the Board’s discussion concerning the resolution, several Board members stated that developers should be required to pay for the cost of constructing new public schools in the County. The sentiment among most commissioners was “whoever creates the problems pays the bills.” One commissioner expressed the view that “[t]he people using [subdivision developments] should pay for the school[,] not 93 year-olds. If [developers] are going to build $150-$300 thousand dollar house [sic] they should pay for the schools.” The Board’s vice chair voted against the resolution, citing concerns about “the legality of the [APFO’s] advancement requirement” and the potential for litigation.
In August 2005 the Board began considering the possibility of making further changes to the APFO. Almost two years later, on 20 August 2007, the Board adopted the APFO in its current form. Cabarrus County, N.C., Zoning Ordinance No. 2007-11 (Aug. 20, 2007). Notably, the revised APFO was added as a new chapter to the County’s zoning ordinance. Id. As a result, the revised APFO superseded the version that appeared in the County’s subdivision ordinance. The Board also attempted to tie the new version of the APFO to the session law, stating that “Per Session Law 2004-39, H.B. 224, Cabarrus County may review proposed developments within an incorporated area of the County for compliance with the Level of Service standards for schools.” Cabarrus County, N.C., Zoning Ordinance ch. 15, § 9(l)(b) (Aug. 20, 2007). Less than a month later, the Board amended its subdivision ordinance by inserting a cross-reference to the newly revised APFO. Cabarrus County, N.C., Subdivision Ordinance No. 2007-12 (Sept. 17, 2007).
The current APFO is more sophisticated than the earlier version. Covering over twenty pages, the ordinance goes into great detail about the process for review of the County’s school capacity. The current APFO includes thirty-four definitions, see Zoning Ordinance ch. 15, § 3, illustrates the ordinance’s Reservation of Capacity Process with a flow chart, id. ch. 15, § 8, and describes the complex statistical formula used to calculate the estimated enrollment impact of a proposed development, id. ch. 15, §§ 9-11.
Notwithstanding its complexity, the current APFO operates in much the same manner as the prior version; that is, it links residential development approval to the availability of space for students in the County’s public school systems.
If there is sufficient unused student capacity to support a proposed development, the Board is required to approve the development without additional APFO conditions. Id. ch. 15, § 7(1). But if available student capacity is insufficient to support the development, the Board may either deny the developer’s application or approve it subject to several “conditions that reduce or mitigate the impacts of the proposed development.” Id. ch. 15, § 7(2)-(3). These conditions include: (1) deferring approval of final plats, building permits, or certificates of occupancy for a maximum of five years or until sufficient student capacity becomes available; (2) phasing construction of the development in increments that coincide with available capacity; (3) reducing density or intensity of the development; (4) entering into a consent agreement involving a monetary contribution, the donation of land, or construction of a school; or (5) “any other reasonable conditions to ensure that all [public schools] will be adequate and available.” Id. ch. 15, §§ 7, 8.
When a developer enters into a consent agreement with the County, the developer receives a Reservation of Capacity Certificate that requires the developer to secure proof of development approval from any other local jurisdiction within one year of issuance. Id. ch. 15 §§ 6-8. Once the developer submits proof of approval to the Board, the consent agreement is approved, executed, and recorded. Id. ch. 15, §§ 6(6)(d), 8. At this point the developer may proceed to review of construction drawings, permitting, and ultimately, construction. Id. ch. 15., § 8.
The ordinance’s reference to a monetary contribution continued the practice of developers paying an adequate public facilities fee to secure Board approval of their projects. Pursuant to the current version of the APFO, these fees are dedicated to the construction of public schools in the specific areas that are impacted by particular developments. Eventually, these fees became known as voluntary mitigation payments (“VMPs”). In 2008 the Board increased the VMP from not less than $4,034.00 per single family unit and $1,331.00 per multifamily unit to $8,617.00 per single family unit, $4,571.00 per townhouse, and $4,153.00 per multifamily unit. Between 2003 and 2008, the Board increased the APFO’s fee for single family units by more than 1,600 percent. As a result of these fees, the APFO has provided the County a substantial source of alternative funding for public schools. Since enactment of the APFO, the County has spent or budgeted over $267 million for school construction.
II
Plaintiff Lanvale Properties, LLC plans to construct a residential development on fifty-four acres located within the territorial jurisdiction of the City of Locust (“Locust”). Most of the site is in Cabarrus County; however, a small portion is in Stanly County. Plaintiff alleges that Cabarrus County has refused to issue a building permit for its development until it complies with the APFO.
On 18 May 2009 and 20 May 2009, plaintiff and the County filed cross-motions for summary judgment regarding all claims in the case. After hearing the motions on 1 June 2009, the trial court allowed plaintiff’s summary judgment motion and denied the County’s motion in an order entered on 17 August 2009. In its written order the trial court concluded as a matter of law that: (1) the County did not have inherent authority to enact its APFO pursuant to North Carolina’s general zoning or subdivision statutes; and (2) even if the County had authority to enact the APFO, Session Law 2004-39 did not authorize the County to enforce the APFO within the territorial jurisdictions of Concord, Midland, and Locust. The County appealed.
The Court of Appeals unanimously affirmed the trial court’s ruling in an unpublished opinion issued on 7 September 2010. Lanvale Props., LLC v. Cnty. of Cabarrus,
III
Entry of summary judgment by a trial court is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (2011); see also Blades v. City of Raleigh,
IV
The County urges us to reverse the decisions below for three reasons: (1) The County was authorized to adopt the APFO pursuant to its “general zoning power”; (2) Session'Law 2004-39 authorized the County to “adopt and enforce its APFO countywide, including within incorporated areas of the county and without the request or consent of any municipality in the County”; and (3) Plaintiff’s claims were barred by the applicable statute of limitations. We reject each of these arguments.
V
We first must look to the nature of counties and their role within the structure of State government. This Court clearly has stated that:
In the exercise of ordinary governmental functions, [counties] are simply agencies of the State constituted for the convenience of local administration in certain portions of the State’s territory, and in the exercise of such functions they are subject to almost unlimited legislative control except where this power is restricted by constitutional provision.
Jones v. Madison Cnty. Comm’rs,
We first consider the County’s argument that its APFO is authorized by sections 153A-340(a) and 153A-341 of the North Carolina General Statutes. At the outset, we note that county zoning ordinances enjoy a presumption of validity. Orange Cnty. v. Heath,
We look further at several foundational principles defining the structure of our State government. The Constitution of North Carolina vests the State’s legislative power in the General Assembly, N.C. Const. art. II, § 1, and permits the legislature to delegate some of its “powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable,” id. art. VII, § 1 para. 1; see also Chrismon v. Guilford Cnty.,
In accordance with this constitutional framework, the General Assembly has given counties the general authority to enact ordinances. See N.C.G.S. § 153A-121(a) (2011) (“A county may by ordinance define, regulate, prohibit, or abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the county . . . .”). Counties may, therefore, restrict the use of real property when there is a “reasonable basis to believe that [the restrictions] will promote the general welfare by conserving” property values and prompting the “most appropriate use” of land. Blades,
Two statutes in particular establish the boundaries of county zoning power. Section 153A-340(a) of the North Carolina General Statutes provides that county zoning ordinances may:
regulate and 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.
N.C.G.S. § 153A-340(a). Section 153A-341 describes the “public purposes” that zoning regulations may address:
Zoning regulations shall be designed to promote the public health, safety, and general welfare. To that end, the regulations may address, among other things, the following public purposes: to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to lessen congestion in the streets; to secure safety from fire, panic, and dangers; and to facilitate the efficient and adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. The regulations shall be made with reasonable consideration as to, among other things, the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the county. In addition, the regulations shall be made with reasonable consideration to expansion and development of any cities within the county, so as to provide for their orderly growth and development.
Id. § 153A-341 (2011). Thus, county zoning ordinances are valid when they conform to the contours of the authority described in these enabling statutes.
Based on their plain language, sections 153A-340(a) and 153A-341 do not expressly authorize the County’s APFO. Consequently, the County contends that these statutes convey implied authority for the ordinance. In support of its position, the County urges us to construe these provisions in light of section 153A-4 of the North Carolina General Statutes, which states:
It is the policy of the General Assembly that the counties of this State should have adequate authority to exercise the powers, rights, duties, functions, privileges, and immunities conferred upon them by law. To this end, the provisions of this Chapter and of local acts shall be broadly construed and grants of power shall be construed to include any powers that are reasonably expedient to the exercise of the power.
Id. § 153A-4 (2011). The County argues that the Court of Appeals and the trial court erred by failing to apply section 153A-4. We disagree.
This Court’s general approach to construing the legislative authority of local governments has evolved over time. Early in our history, we broadly construed the State’s grant of legislative authority to municipalities. See David W. Owens,
general and undisputed proposition of law, that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation.
Smith,
In 1973 the General Assembly enacted section 153-4 (now codified as section 153A-4) of the North Carolina General Statutes two years after it adopted section 160A-4, a similar provision relating to municipal governments. See Act of May 24, 1973, ch. 822, sec. 1, 1973 N.C. Sess. Laws 1233, 1234; Act of June 30, 1971, ch. 698, sec. 1, 1971 N.C. Sess. Laws 724, 725. Our initial application of these provisions to zoning cases was inconsistent. In Porsh Builders, Inc. v. City of Winston-Salem, one of our first decisions following enactment of these statutes, we did not apply section 160A-4, but rather used Dillon’s Rule to analyze whether the city was required by statute to accept “the highest responsible bid” for a parcel of land that it owned.
Relying on Homebuilders and River Birch, the County argues that the decisions below conflict with our “repeated pronouncements that [section 153A-4’s broad construction] mandate must always be faithfully applied in interpreting the powers conferred by the Legislature to counties and cities in enacting zoning regulations.” (emphasis added). The principal flaw in the County’s argument is that section 153A-4 is a rule of statutory construction rather than a general directive to give our general zoning statutes the broadest construction possible. As we long have held, “ ‘Statutory interpretation properly begins with an examination of the plain words of the statute.’ ” Three Guys Real Estate v. Harnett Cnty.,
Consequently, section 153A-4 applies only when our zoning statutes are ambiguous, see Smith Chapel,
Accordingly, we must ascertain whether the plain language of our enabling statutes gives the County implied authority to enact its APFO. We hold that it does not. When interpreting a statute we “presume that the legislature acted with care and deliberation, and, when appropriate,” we consider “the purpose of the legislation.” Bowers,
The dissent also posits that the “statutory language [in sections 153A-340(a) and 153A-341] does not plainly define the limits of the powers delegated, and must be read in light of the General Assembly’s intent for the entire Chapter as conveyed in sections 153A-4 and section 153-124.” As a result, the dissent concludes that the plain language of sections 153A-340(a) and 153A-341 is ambiguous. This is a curious conclusion. The dissent’s position appears to be premised upon an apparent lack of specificity in the statutory language. In the absence of this more precise language — it is unclear from the dissent’s opinion how much more specific the language must be — the dissent argues for the broadest construction of county power possible, relying upon sections 153A-4 and 153A-124. But this argument overlooks the fact that the plain language of sections 153A-340(a) and 153A-341 provides clear guidance to counties regarding the extent of their zoning powers. Accordingly, sections 153A-4 and 153A-124 simply cannot be employed to give authority to county ordinances that do not fit within the parameters set forth in the enabling statutes. See Cnty. of Lancaster, S.C.,
Notwithstanding the dissent’s assertion, the General Assembly, in the past, has enacted
The dissent contends that we “minimize the unqualified and expansive powers that the General Assembly has given counties to oversee and control development and school construction.” Nothing could be farther from the truth because the legislative powers of county governments in these areas are not as broad as the dissent characterizes them. As we noted above, counties “are instrumentalities of the State government . . . subject to its legislative control,” see Comm’rs of Dare Cnty.,
The dissent further asserts that the “particular instructions” contained in section 153A-4 “are mandatory.” In support of its view, the dissent cites Homebuilders, which states that section 160A-4 (relating to the extent of municipal authority) constitutes a “legislative mandate that we are to construe in a broad fashion the provisions and grants of power contained in section 160A.”
In reality, this case is more straightforward than the dissent’s sweeping interpretation would lead the casual reader to believe. The starting point of our analysis is to establish the distinction between zoning ordinances and subdivision ordinances. “Zoning, as a definitional matter, is the regulation by a local governmental entity of the use of land within a given community, and of the buildings and structures which may be located thereon, in accordance with a general plan.” Chrismon,
As a result, general zoning ordinances are distinct from subdivision ordinances. Pursuant to section 153A-330 of the North Carolina General Statutes, a county may enact ordinances to “regulate the subdivision of land within its territorial jurisdiction.” Id. § 153A-330 (2011). Section 153A-335 of the North Carolina General Statutes defines the term “subdivision” in part to “mean[ ] all divisions of a tract or parcel of land into two or more lots, building sites, or other divisions when any one or more of those divisions are created for the purpose of sale or building development (whether immediate or future).” Id. § 153-335(a) (2011) (emphases added). Thus, as a general matter, subdivision ordinances are designed to “regulate the creation of new lots or separate parcels of land.” Owens, Land Use Law, at 49. “Unlike zoning, which controls the use of land and remains important before, during and after development, subdivision regulation generally refers to controls implemented during the development process.” Julian Conrad Juergensmeyer & Daren E. Roberts, Land Use Planning and Development Regulation Law § 7:2, at 395 (2d ed. 2007). To this end, subdivision ordinances have several purposes, including, among other things, “facilitat[ing] record keeping regarding land ownership”; establishing “standards on the size and shape of new lots and the layout of public facilities (such as street location, intersection design, and the like)”; and “requir[ing] the provision of essential infrastructure (such as roads, utilities, recreational lands, and open space) and the details of how [that infrastructure] is to be laid out and constructed.” Id. at 49-50 (footnote omitted). Therefore, county subdivision ordinances control the development of specific parcels of land while general zoning ordinances regulate land use activities over multiple properties located within a distinct area of the county’s territorial jurisdiction. See Union Land Owners,
Surprisingly, the dissent argues that “we do not need to label this ordinance as either a zoning or subdivision ordinance.” The dissent’s contention that the APFO’s non-VMP provisions are “unremarkable” exercises of the County’s zoning power also relies upon this flawed reasoning. Additionally, the dissent overstates the purposes of unified development ordinances (“UDOs”), which counties are authorized to enact pursuant to section 153A-322(d) of the North Carolina General Statutes. As a result, the dissent states that “[t]he question on the merits is not whether the APFO is a zoning ordinance or a subdivision ordinance, but whether any of the powers delegated by the General Assembly to counties in Chapter 153A would support the voluntary mitigation payments provision.”
The dissent’s contentions, however, are at odds with the County’s primary argument that its APFO is authorized by its general zoning power. They also reflect a lack of understanding about the purpose of unified development ordinances. As Professor David W. Owens notes, “Subdivision ordinances are most commonly adopted as separate ordinances, but they are occasionally combined with zoning and other development regulations into a single ordinance regulating multiple aspects of land development (often termed a ‘unified development ordinance’).” Owens, Land Use Law, at 49. However, the functional distinctions between zoning ordinances and subdivision ordinances remain intact even when they are adopted as part of a UDO. In enacting section 153A-322(d), the General Assembly did not give counties the authority to eliminate the differentiation between zoning and subdivision ordinances. Rather, the General Assembly was providing
An understanding of the distinctions between zoning ordinances and subdivision ordinances is critical because, while both types of ordinances regulate the use of real property, they do so in very different ways. The dissent’s severance argument can survive only by confusing this long-standing distinction. Severance is not an appropriate remedy because the entire APFO simply does not fall within the ambit of zoning; that is, it has little or nothing to do with the County’s ability to divide its land into districts — or zones — based on specific land uses, see Chrismon,
Here the purpose and effect of the County’s APFO do not fall within the purview of the County’s general zoning authority. In contrast to the basic zoning concepts articulated in the plain language of sections 153A-340(a) and 153A-341, the APFO does not define the specific land uses that are permitted, or prohibited, within a particular zoning district. See N.C.G.S. § 153A-340(a). Instead, the APFO links County approval of residential developments to the availability of space for students in the County’s public schools. If the local public schools have insufficient capacity to serve the development, developers, more often than not, are required to pay a substantial sum to the County to secure project approval.
The dissent argues that section 153A-342 is inconsistent with “the majority’s narrow interpretation of zoning.” Once again, the dissent’s criticism is based on a misunderstanding of basic land use law. The first sentence of section 153A-342(a) addresses the power of counties with respect to their geography by authorizing the division of each county’s “territorial jurisdiction into districts of any number, shape, and area that [the county] may consider best suited to carry out the purposes of this Part.
In operation the APFO is a very effective means of generating revenue, as the Board’s public actions demonstrate. Between 1998 and mid-August 2003, developers seeking approval of their residential developments paid the County an adequate public facilities fee of $500.00 per residential unit. On 25 August 2003, the Board increased that amount to not less than $1,008.00 per residential unit. Res. No. 2003-26. Slightly over a year later, the Board raised the APFO fee to not less than $4,034.00 per single family unit and $1,331.00 per multifamily unit. Cabarrus County, N.C., Res. No. 2004-37 (Sept. 20, 2004). In 2008 the Board increased the minimum VMP to $8,617.00 per single family unit, $4,571.00 for townhouses, and $4,153.00 per multifamily unit. Looking at just the five year period between 2003 and 2008, the Board increased the APFO’s fee for single family units by more than 1,600 percent. According to the county manager’s 2008 annual budget statement, the Board’s decision to increase the VMP to $8,617.00 per single family unit “will produce millions more in revenue over time and help defray the amount of debt required for school construction.” As noted above, the County has spent or budgeted over $267 million for school construction since the first APFO was enacted in 1998. Therefore, we must conclude that the APFO is a carefully crafted revenue generation mechanism that effectively establishes a “pay-to-build” system for developers.
Moreover, we cannot accept the County’s argument that the APFO’s VMP is “voluntary.” Several statements made by county commissioners and staff illustrate this point. At the Board’s 20 September 2004 meeting, one commissioner acknowledged making a statement at a previous meeting that the APFO was designed to ensure that “whoever creates the problems pays the bills.” During the same meeting, the Board’s vice chair stated that the APFO’s consent agreements “are forced,” meaning, as he expressed it, that the agreements “may be consensual in the legal forms, but in reality [they are] not.” Further, at the Board’s 10 July 2006 meeting, a commissioner and the county attorney had an exchange in which the county attorney explained that, although the Board could approve without conditions a development that would result in school overcrowding, construction on the project could not begin until school capacity became adequate:
“Commissioner: If that is the case we will not get the fee.”
“Attorney: They will not be building either.”
In light of these statements, it is clear that the VMP operates much like the mandatory school impact fee that the Court of Appeals invalidated in Durham Land Owners Ass’n v. County of Durham,
We also observe that the APFO’s revenue generation characteristics conflict with our State’s current approach to funding public education. The General Assembly has authorized counties to obtain revenue for public
We recognize the difficulty that county governments currently face as they try to meet their statutory obligation to provide adequate public school facilities, see N.C.G.S. § 115C-408(b) (2011), and we applaud the County’s commitment to securing additional funds for school construction. But we believe the General Assembly is best suited to address the complex issues involving population growth and its impact on public education throughout the State. We note that the General Assembly has not addressed this precise issue to date. See Union Land Owners,
VI
We now turn to the County’s argument that its APFO was authorized by Session Law 2004-39, which states:
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.
Ch. 39, sec. 5,
“When interpreting a statute, we ascertain the intent of the legislature, first by applying the statute’s language and, if necessary, considering its legislative history and the circumstances of its enactment.” Shaw v. U.S. Airways, Inc.,
First, our review of the session law’s plain language belies the County’s “adopt and enforce” argument. Most notably, the word “adopt” does not appear anywhere in the text of the session law. If the legislature had intended to authorize the County to adopt an APFO such as the one at issue, it could have done so expressly. In 1987 the General Assembly expressly authorized Chatham and Orange Counties to impose impact fees on residential developers to support the provision of public facilities, including schools. Act of June 23, 1987, ch. 460, secs. 4-12.1, 17-18.1, 1987 N.C. Sess. Laws 609, 611-13, 616-622. For example, with respect to Chatham County, the General Assembly stated:
The Board of Commissioners of a county may provide by ordinance for a system of impact fees to be paid by developers to help defray the costs to the county of constructing certain capital improvements, the need for which is created in substantial part by the new development that takes place within the county.
Id., sec. 4(a). This language conclusively demonstrates that the General Assembly
Even assuming that the session law’s language is ambiguous enough to allow us to entertain the County’s position, the circumstances surrounding enactment of Session Law 2004-39 indicate that the General Assembly did not intend for the session law to authorize the County to adopt its APFO. Rather, the record shows that the session law was an effort to address the confusion between the County and several municipalities regarding enforcement of the APFO. The record contains ample evidence that Concord and Kannapolis chose not to enforce the ordinance within their municipal jurisdictions because of the fees themselves and concerns about whether the County had authority to collect the fees within their jurisdictional boundaries. On 12 August 2004, the county manager sent letters to the city managers of Concord and Kannapolis informing them that pursuant to the new session law, the APFO now applied to all municipalities in the County. The next day — 13 August 2004 — Concord’s city manager sent a memorandum to Concord’s mayor, members of the city council, and the city attorney expressing doubt that Session Law 2004-39 clarified “the municipalities’ ability to collect [the APFO] fee,” but stating that the city staff “thought there was a way it could be done.” The city manager also wrote that he had explained to the county manager during a telephone call that attempts by the County to revise the APFO without consulting Concord “would not be received well.” According to the memorandum, the county manager understood these concerns, but felt that the County “needed to go ahead [with the revisions] so [it] c[ould] position [itself] to try to get the [APFO] fees from the developers.”
On 16 August 2004, slightly over a month after Session Law 2004-39 was enacted, the county manager told the Board during its monthly meeting that the session law “authorized Cabarrus County to enforce its school adequacy requirements countywide, including within the corporate limits of the municipalities.” Following the county manager’s statement and a presentation by a member of the County’s planning department staff regarding school construction capital costs, the Board engaged in a discussion about its adequate public facilities policy. Several issues were raised, including “enforcement [of the APFO] within municipalities.” During this exchange the Board’s vice chair expressed “concerns about the legality of the [APFO’s] advancement requirement and stated [that] a higher fee would have a negative impact on the building industry and the economy of Cabarrus County.” Notwithstanding this statement, the commission voted four to one, with the vice chair in dissent, to approve a resolution that, among other things, stated:
New development within the corporate limits of any of the cities and towns located in Cabarrus County shall also be subject to the adequacy review through the Cabarrus Countv Subdivision Regulations Chapter 4, Section 17 “Adequate Public Facilities Standards,” as provided for by Session Law 2004-39, House Bill 224, which became effective June 30, 2004.
Res. No. 2004-30. According to the meeting minutes and the text of this resolution, the Board and county staff believed Session Law 2004-39 was intended to address APFO enforcement concerns involving the municipalities located within Cabarrus County, not to give the County authority to enact the APFO.
This point is corroborated by correspondence between county and municipal staff following the Board’s 16 August 2004 meeting. On 20 August 2004, the interim city
Apparently anticipating the weakness of its argument, the County contends in its brief that “it would have made no sense for the [General Assembly] to use the word ‘adopt’ when the APFO had already been in existence for a number of years.” Ironically, the existence of the County’s APFO before enactment of Session Law 2004-39 further undermines the County’s “adopt and enforce” theory. The record demonstrates that county officials believed (mistakenly) that the County already had statutory authority to enact the APFO. The County’s commerce director admitted in his 24 April 2009 deposition that the County did not rely upon Session Law 2004-39 as authority for the APFO stating, “We had an APFO prior to that.” Notably, the commerce director’s deposition was taken several months before the Court of Appeals invalidated Union County’s APFO in Union Land Owners. Thus, it appears that the County’s “adopt and enforce” argument is a relatively recent development.
As a final note, even if we assume arguendo that Session Law 2004-39 authorized the County to adopt its APFO, we do not believe that the legislature intended to give the County unfettered authority to enact this revenue-driven ordinance. Our conclusion is derived from the substantial differences between the APFO’s initial version and its current iteration, the General Assembly’s reluctance to authorize the imposition of school impact fees, and the Court of Appeals’ decision in Durham Land Owners.
The current APFO effectively requires developers to pay a substantial adequate public facilities fee to receive development approval. In practice, the Board has leveraged this dynamic to generate substantial revenues for the County, which once again, demonstrates the precise harm that APFOs may inflict on unpopular groups. Such government action should not be permitted without specific enabling legislation enacted by the General Assembly.
Moreover, as noted above, when the session law was enacted, the General Assembly already had rejected requests by another county to authorize the imposition of school impact fees. See Union Land Owners,
One of the implied premises of the County’s “adopt and enforce” argument is that by enacting Session Law 2004-39, the General Assembly intended to grant the County unconditional authority to expand substantially the scope of its APFO, from a simple adequacy review process into a complex revenue generating system. We reject this proposition. Again, assuming arguendo that Session Law 2004-39 authorized adoption of the APFO, we simply do not believe that the General Assembly intended for the session law to give the County the power to adopt an APFO with the broad scope that we consider and reject today.
In sum, we hold that Session Law 2004-39 did not authorize the County to enact its APFO. As a result, we do not address the parties’ arguments regarding whether the
VII
Finally, we consider the County’s argument that plaintiff’s action was barred by the statutes of limitations that were in effect when plaintiff filed its initial complaint on 4 April 2008. Specifically, the County contends it was entitled to summary judgment pursuant to sections 153A-348 (2009) and 1-54.1 (2009) of the North Carolina General Statutes.
Pursuant to section 153A-348: “A cause of action as to the validity of any zoning ordinance, or amendment thereto, adopted under this Part or other applicable law shall accrue upon adoption of the ordinance, or amendment thereto, and shall be brought within two months as provided in G.S. 1-54.1.” N.C.G.S. § 153A-348 (2009). Section 1-54.1 requires a party to file:
Within two months an action contesting the validity of any zoning ordinance or amendment thereto adopted by a county under Part 3 of Article 18 of Chapter 153A of the General Statutes or other applicable law or adopted by a city under Chapter 160A of the General Statutes or other applicable law.
Id. § 1-54.1 (2009).
The County argues that plaintiff filed its complaint well over two months after the County revised the APFO on 20 August 2007. In addition, the County asserts that the Court of Appeals erred by relying on its decision in Amward Homes, Inc. v. Town of Cary to reject the County’s statute of limitations argument. See Amward Homes,
As discussed above, after reviewing the substance of the APFO, we conclude that it is not a zoning ordinance. Rather, the APFO impermissibly places the burden of funding public school construction on developers by using a revenue generating mechanism that is disguised as a zoning ordinance. Because the APFO is not a zoning ordinance, plaintiffs action is not time barred by sections 153A-348 and 1-54.1.
VIII
In conclusion, we hold that (1) the County did not have statutory authority to adopt its APFO; (2) Session Law 2004-39 did not authorize enactment of the APFO; and (3) plaintiffs cause of action is not time barred. Accordingly, we affirm the decision of the Court of Appeals.
AFFIRMED.
Notes
. The Cabarrus County towns of Harrisburg, Midland, and Mt. Pleasant have authorized the County to enforce its zoning and subdivision ordinances within their territorial jurisdictions pursuant to section 160A-360(d) of the North Carolina General Statutes. See N.C.G.S. § 160A-360(d) (2011). The County, which furnishes planning services to these three municipalities, enforced its APFO in those towns at their request. The record indicates that to date, the cities of Concord, Kannapolis, and Locust have not granted this authority to the County.
. All residential developments, including single family units, townhouses, multifamily units (e.g., apartments), and mobile home parks, that impact public school capacity are subject to the APFO. Zoning Ordinance ch. 15, § 4(1). However, residential developments which are unlikely to impact public school enrollment, such as retirement homes and subdivisions of five lots or less, do not fall within its jurisdiction. Id.
. In accordance with Rule 40 of the North Carolina Rules of Appellate Procedure, the Court of Appeals consolidated plaintiff’s declaratory judgment action with two similar actions filed against Cabarrus County. See Lanvale Props., LLC v. Cnty. of Cabarrus,
. Locust’s territorial jurisdiction overlaps the border between Cabarrus and Stanly Counties. On 20 September 2004, the Stanly County Board of Commissioners adopted an APFO that is similar to the Cabarrus County APFO. Notably, Stanly County’s minimum VMP is $1,500.00 per residential unit.
. Plaintiff subsequently amended its complaint on 23 April 2008 and 29 August 2008. In addition, on 19 August 2008, the trial court allowed the Cabarrus County Building Industry Coalition to intervene in this matter as a party plaintiff pursuant to Rule 24 of the North Carolina Rules of Civil Procedure. Because Lanvale is the only plaintiff participating in this appeal, we will refer to plaintiff in the singular throughout this opinion.
. Locust filed its answers on 27 June 2008 and 26 September 2008.
. Although plaintiff named Locust as a defendant, Locust did not join in the County’s appeal. Instead, Locust filed a brief persuasively arguing that the County lacks authority to enact its APFO.
. The dissent argues that we should apply section 153A-4 because the APFO is a “reasonably expedient” means of providing funds for public school construction. We disagree. Without belaboring the point, after thoroughly reviewing the record, we observe that the Board’s actions between 2003 and 2008 to increase the VMP for single family units by 1,600 percent (from $500.00 per unit in 2003 to $8,617.00 per unit in 2008) were anything but reasonable.
. As an illustration, in early April 2008, county staff determined that local schools were insufficient to support the Mardan IV development, see n.5, which comprised 168 apartment units. On 21 April 2008, the Board approved a Reservation of Capacity Certificate for the project on the condition that the Mardan IV developers pay the $4,153.00 per unit VMP. As a result, the Mardan IV developers would have been required to make a payment of $697,704.00 to secure development approval. The Mardan IV developer’s Reservation of Capacity Certificate expired on 22 April 2009 because the developer failed to submit to the County the requisite development approval from Concord.
. As further evidence of the distinction between zoning and subdivision ordinances, we observe that the statutes conveying zoning and subdivision powers on counties are treated separately in the General Statutes. The subdivision statutes appear in Part Two of Article 18. See N.C.G.S. §§ 153A-330 to -336. Meanwhile, the zoning statutes are contained in Part Three of the same article. See N.C.G.S. §§ 153A-340 to -349.
. The General Assembly substantially revised sections 153A-348 and 1-54.1 in 2011. See Act of June 17, 2011, ch. 384, secs. 2, 3, 2011 5 N.C. Adv. Legis. Serv. 465, 465-66 (LexisNexis). These revisions do not apply to this case. See id., sec. 7 at 467 (“This act becomes effective July 1, 2011, but the provisions of Sections 1 through 4 of this act, to the extent they effect a change in existing law, shall not apply to litigation pending on that date.”). We therefore analyze the County’s statute of limitations argument using the versions of these statutes that were in effect when plaintiff filed its initial complaint.
Dissenting Opinion
dissenting.
I agree with the majority that counties are instrumentalities of the State, with powers granted by the General Assembly. “But it is also true that a municipal corporation may exercise all the powers within the fair intent and purpose of its creation which are reasonably necessary to give effect to the powers expressly granted, and in doing this it may exercise discretion as to the means to the end.” Riddle v. Ledbetter,
I. Severance
The majority here strikes down the entire APFO based primarily on its determination that the voluntary mitigation payments provision of the APFO exceeds the county’s authority under the General Statutes. In doing so, the majority passes over, with minimal explanation, the obvious remedy required when only one provision of an ordinance is statutorily unauthorized: severance of the offending provision.
The majority opinion analyzes only one provision of the entire twenty page APFO: the voluntary mitigation payment provision, to which it refers as a “carefully crafted revenue generation mechanism” “disguised as a zoning ordinance.” Underlying the analysis in the majority opinion is its characterization of the VMP as a mandatory fee.
“The test for severability is whether the remaining portion of the legislation can stand on its own and whether the [legislative body] would have enacted the remainder absent the offending portion.” Pope v. Easley,
The majority states that “[severance is not an appropriate remedy because the entire APFO simply does not fall within the ambit of zoning.” The entire APFO, with or without the VMP provision, contains extensive provisions detailing methods of calculating school impact and various mitigation measures developers could take to address inadequate school capacity. These provisions and others appear to me to be within the scope of regulating and restricting the use of land and buildings for residence and other purposes, as intended by the General Assembly. N.C.G.S. § 153A-340(a) (2011). At no point does the majority explain how denying a development application in light of inadequate school capacity, delaying development until school capacity is adequate, or requiring the developer to modify the development application to address inadequate school capacity are not authorized by statute.
By failing to sever the VMP provision, the majority appears to have created a situation in which the county is powerless to delay or deny development applications in light of inadequate school capacity, and now has few choices beyond raising property taxes on existing residents to pay for schools that will
“The history of the Supreme Court of North Carolina has been one of judicial restraint. . ..” State v. Waddell,
II. Matters Preliminary to the Merits
A. The Interpretive Framework
To explain why the entire APFO should be upheld, I begin with a discussion of the provisions in Chapter 153A in which the General Assembly specifically and clearly articulated the intent behind these statutory delegations of authority. By ignoring these provisions, the majority misreads the individual provisions of the statute at issue here. Legislative intent “is the guiding star in the interpretation of statutes.” Moore v. Adams Elec. Co.,
It is the policy of the General Assembly that the counties of this State should have adequate authority to exercise the powers, rights, duties, functions, privileges, and immunities conferred upon them by law. To this end, the provisions of this Chapter and of local acts shall be broadly construed and grants of power shall be construed to include any powers that are reasonably expedient to the exercise of the power.
N.C.G.S. § 153A-4 (emphases added) (2011). Section 153A-124 drives home the same point:
The enumeration in this Article or other portions of this Chapter of specific powers to define, regulate, prohibit, or abate acts, omissions, or conditions is not exclusive, nor is it a limit on the general authority to adopt ordinances conferred on counties by G.S. 153A-121. •
Id. § 153A-124 (emphasis added) (2011). The plain language of these two sections indicates a specific legislative will that all provisions of Chapter 153A be read broadly to effectuate the goals of the General Assembly in granting numerous powers to local governments.
The sections of the statute at issue here read in pertinent part:
A zoning ordinance may regulate and 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.
N.C.G.S. § 153A-340(a).
Zoning regulations shall be designed to promote the public health, safety, and general welfare. To that end, the regulations may address, among other things, the following public purposes: to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to lessen congestion in the streets; to secure safety from fire, panic, and dangers; and to facilitate the efficient and adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. The regulations shall be made with reasonable consideration as to, among other things, the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the county. In addition, the regulations shall be madewith reasonable consideration to expansion and development of any cities within the county, so as to provide for their orderly growth and development.
Id. § 153A-341 (2011).
The majority circumvents section 153A-4 by claiming that the statutory language in these zoning enabling statutes, N.C.G.S. §§ 153A-340, et seq., is plain, and therefore, no construction is necessary and section 153A-4 does not apply. This interpretive evasion is untenable for two reasons: first, because section 153A-4 is not an optional provision, and second, because the language in the zoning statutes is not plain.
First, section 153A-4 is not an optional provision of the statute. While interpretive instructions in statutes are not generally binding upon this Court, we have previously ruled — -twice—that these particular instructions are mandatory: “We treat this language as a ‘legislative mandate that we are to construe in a broad fashion the provisions and grants of power contained’ ” in the statute. Homebuilders Ass’n of Charlotte v. City of Charlotte,
The majority completely omits any discussion of section 153A-124, which states that the enumerated list of powers is not exclusive. The majority’s interpretation — that the lack of an explicit provision enabling voluntary mitigation payments means that such payments are not authorized — is frankly inexplicable in light of this provision. Section 153A-124 expressly states that the enumeration of powers in the statutes that compose Chapter 153A “is not exclusive, nor is it a limit on the general authority to adopt ordinances.” N.C.G.S. § 153A-124. This language can only mean that the General Assembly did not intend to limit county powers to those it specifically named in each statute at the time of its passage, but rather anticipated giving local governing bodies significant discretion in how to exercise their “general
As such, when I turn to the particular zoning (and subdivision) provisions at issue here, I read them in the context of these expressions of intent by the General Assembly. But even if these sections only apply to ambiguous statutory language, they must still be applied here because the language in sections 153A-340 and 153A-341 is ambiguous. The majority concludes that “[s]ections 153A-340(a) and 153A-341 express in unambiguous language the General Assembly’s intent to delegate general zoning powers to county governments,” and thus declares section 153A-4 “inapposite.” While I agree that these provisions “express in unambiguous language” an “intent to delegate general zoning powers,” that is not the appropriate question here. The appropriate question is whether the language describing the general zoning powers to be delegated is plain. It is the content and extent of the delegation that must be plainly expressed if we are to avoid any statutory construction. In these sections, the General Assembly authorizes counties to adopt ordinances which “regulate and restrict the . . . use of buildings, structures, and land for trade, industry, residence, or other purposes.” N.C.G.S. § 153A-340(a). Moreover, counties “may address, among other things ... the efficient and adequate provision of schools . . . .” N.C.G.S. § 153A-341.
I conclude that this statutory language does not plainly define the limits of the powers delegated and must be read in light of the General Assembly’s intent for the entire Chapter as conveyed in sections 153A-4 and 153A-124. The plain language of sections 153A-340(a) and 153A-341 does no more than simply and broadly authorize, among other things, the regulation and restriction of the use of land for residence purposes and gives examples of the types of public purposes counties may address. The question before us, therefore, is whether this general language authorizes the particular regulation and restriction of the use of land created in the ordinance at issue. See Offutt Hous. Co. v. Cnty. of Sarpy,
These mandates from the General Assembly to read Chapter 153A broadly have real significance. Most statutes do not contain such interpretive guidance. “These provisions evince an evident legislative purpose to give local governments considerable flexibility and discretion . . . .” Maready v. City of Winston-Salem,
B. General Discussion of Zoning
Regarding another general matter, I am troubled by the majority’s broad discussion of the definitions of zoning and subdivision ordinances. As an initial point, given the statutory framework, we do not need to label this ordinance as either a zoning or subdivision ordinance. Clearly, zoning and subdivision
A county may elect to combine any of the ordinances authorized by this Article into a unified ordinance. Unless expressly provided otherwise, a county may apply any of the definitions and procedures authorized by law to any or all aspects of the unified ordinance and may employ any organizational structure, board, commission, or staffing arrangement authorized by law to any or all aspects of the ordinance.
N.C.G.S. § 153A-322(d) (2011) (emphasis added). See also N.C.G.S. §§ 153A-330 (2011), -340(a). Because counties are specifically authorized to select and combine powers from throughout Chapter 153A in a unified development ordinance, the question on the merits is not whether the APFO is a zoning ordinance or a subdivision ordinance, but whether any of the powers delegated by the General Assembly to counties in Chapter 153A would support the voluntary mitigation payments provision.
Nevertheless, to the extent the majority determines that the APFO is clearly not a zoning ordinance, I disagree: it certainly contains some elements of a zoning ordinance.
While zoning may be theoretically about creating land use districts, in reality zoning is whatever the General Assembly has said it is. And the General Assembly has granted to counties zoning power much broader and more nuanced than just what is needed to create general zoning districts. In subsection 153A-340(a), quoted in part above, the General Assembly defines the zoning power as including the power to “regulate and restrict” many things, including “the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.” In section 153A-341, also quoted in part above, the General Assembly adds that “regulations may address” a host of “public purposes” including “to facilitate the efficient and adequate provision of. . . schools.” Most inconsistent with the majority’s narrow interpretation of zoning is section 153A-342:
A county may divide its territorial jurisdiction into districts of any number, shape, and area that it may consider best suited to carry out the purposes of this Part. Within these districts a county may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land.
Id. § 153A-342(a) (2011) (emphasis added). The majority quotes but does not recognize the significance of the emphasized portion. The APFO clearly “regulate[s] and restrict[s]” the “erection” and “use of buildings” and “land” within residential zoning districts. Section 153A-342(a) illustrates the process the County followed here: first, it created zoning districts wherein residential development may occur; second, it applied the APFO, which “regulate [s] and restrict[s] the ... use of . . . land” specifically “within these [residential] districts.” Id. The majority’s excessively narrow definition of zoning — that “the ambit of zoning” is limited to “the County’s ability to divide its land into districts — or zones — based on specific land uses” — recognizes only the first sentence of section 153A-342(a).
All these provisions fall under what the General Assembly labeled as the “Zoning” part of Article 18 of Chapter 153A. Whether
Moreover, even applying the majority’s definition of zoning as “regulatfing] land use activities over multiple properties,” this APFO does just that. In particular, I find curious the following statement in the majority opinion: “[T]he APFO does not define the specific land uses that are permitted, or prohibited, within a particular zoning district. See N.C.G.S § 153A-340(a). Instead, the APFO links County approval of residential developments to the availability of space for students in the County’s public schools.” The problem with this approach is that the language of section 153A-340(a) does not specifically limit zoning ordinances to those which “define the specific land uses that are permitted, or prohibited, within a particular zoning district.” Rather, the statute authorizes counties to “regulate and restrict the ... use of... land for... residence ... purposes.” N.C.G.S. § 153A-340(a). It seems clear to me that conditioning approval of residential development on the existence of adequate public school capacity is the very definition of a regulation (“[t]he act or process of controlling by rule or restriction,” Black’s Law Dictionary 1311 (8th ed. 2004)) or restriction of the use of land. Thus, the APFO does “regulate and restrict” the use of land within land use districts that allow residential development. Linking approval of residential development to school adequacy is a textbook example of an exercise of the zoning power granted in Article 18 of Chapter 153A, and the distinction the majority attempts to draw is simply illusory. Consistent with sections 153A-340(a) and -341, the alternative mitigation options in the ordinance reflect the county’s “consideration of expansion and development...” so as “to address the . . . adequate provision of. . . schools.” N.C.G.S. §§ 153A-340(a), -341.
The majority seems to conclude that Cabarrus County’s APFO is a subdivision ordinance. Applying the same logic the majority uses-— that the APFO cannot be called a zoning ordinance because it “simply does not zone” — one would conclude that the County’s APFO cannot be classified as a subdivision ordinance because it “simply does not” subdivide. As the majority notes, subdivision is defined as “all divisions of a tract or parcel of land into two or more lots.” N.C.G.S. § 153A-335 (2011) (emphasis added). The APFO here does not regulate divisions of a tract or parcel of land. Rather, it regulates the use of the lots, specifically the number of housing units planned by the developer. The APFO is concerned with the number of housing units (a zoning issue), not the number of subdivided lots (a subdivision issue).
The majority states that “county subdivision ordinances control the development of specific parcels of land while general zoning ordinances regulate land use activities over multiple properties located with a distinct area of the county’s territorial jurisdiction.” Even this attempt to draw a clear distinction between subdivision and zoning regulations fails to explain how this APFO is not a zoning regulation. The APFO clearly “regulate [s] land use activities” — by controlling the approval process for large residential construction and development projects. It acts “over multiple properties”- — all properties in any residential district in the county that are going to be developed into more than five housing units. The properties regulated are “located within a distinct area of the county’s territorial jurisdiction” — the area served by a particular public school within that residential district. Thus, even under the majority’s new and limited definition of zoning, the APFO still zones.
In sum, the majority’s efforts to distinguish subdivision and zoning are unnecessary in light of N.C.G.S. 153A-322(d), and the majority fails to explain how this APFO does not directly implicate the statutorily granted power to “regulate and restrict the . . . use of ... land for . . . residence . . . purposes,” a power expressly found in the zoning enabling statute. N.C.G.S. § 153A-340(a).
III. Authority for the APFO
A. General Authority for the APFO without VMPs
As noted in Section I regarding severance, the majority does not at any point substantively
In my view, the power to temporarily delay development in light of inadequate public school capacity falls squarely within the statutory powers delegated to counties by the General Assembly. Counties are expressly granted the authority to “regulate and restrict. . . the location and use o/buildings, structures, and land for trade, industry, residence, or other purposes.” Id. § 153A-340(a) (emphases added). The General Assembly also specifically names some of the purposes for which the powers granted in section 153A-340 may legitimately be used, one of which is “to facilitate the efficient and adequate provision of . . . schools.” Id. § 153A-341. Notably, the General Assembly does not define the exact types of regulations and restrictions that can be imposed on the use of land for residential purposes, nor does it specify how a county might create zoning regulations to facilitate the adequate provision of schools. The General Assembly has left the creation of these regulations to the sound discretion of local governments, while requiring that they be made with
reasonable consideration as to, among other things, the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the county. In addition, the regulations shall be made with reasonable consideration to expansion and development of any cities within the county, so as to provide for their orderly growth and development.
Id. I have seen no analysis, and the majority provides none,
In addition, the General Assembly has expressly given counties the power to temporarily halt all development in a county. N.C.G.S. § 153A-340(h) (2011) (stating that “counties may adopt temporary moratoria on any county development approval required by law”).
B. General Authority for Voluntary Mitigation Payments
With the interpretive framework described in Section II.A in mind, it is an easy step from the general and uncontroversial authority to review school adequacy and delay development to the more specific and controversial authority to offer builders the choice either to delay development or to engage in voluntary mitigation measures, one of which is the payment of fees.
Our decision in Homebuilders Ass’n of Charlotte is closely analogous to the reasoning here. There, a homebuilders association challenged the city’s imposition of user fees for certain regulatory services and access to public facilities on grounds that no statute expressly authorized those specific fees. The plaintiff bolstered its argument by pointing to the express inclusion of certain fees for sewer usage as evidence that other user fees were not authorized. The Court in Homebuilders Ass’n rejected that analysis:
[ T]he Court of Appeals noted that the General Assembly has expressly authorized county water and sewer districts to charge user fees for furnished services while it has remained silent on the authority to impose user fees for other services. Here again, the General Assembly did not specify that sewer services were the only services for which user fees could be charged and we find no basis for such a strained reading of this statute.
It should be noted at this point that, despite the majority’s juxtaposition of the two (“[I]t is clear that the VMP operates much like the mandatory school impact fee that the Court of Appeals invalidated in Durham Land Owners Ass’n v. County of Durham.”), Cabarrus County’s APFO is significantly different from the school impact fee ordinance struck down by the Court of Appeals in Durham Land Owners. Under the Durham ordinance builders had to pay a mandatory fee for every dwelling unit built. The fee was required irrespective of existing school capacity, location of the development, or the county’s future school construction plans. There was no requirement that the fees be spent to build a school in the area of the development, so future residents of the development might not even see the benefit of
IV. Session Law 2004-39
Even if the Court is unconvinced that the broad construction provisions of sections 153A-4 and 153A-124 apply and lead us to uphold the voluntary mitigation measures, the Court should still approve the entire APFO based on the additional grant of power contained in Session Law 2004-39. While it is arguable whether the session law provides authority to adopt the APFO,
The majority suggests that the session law did not authorize the adoption of an APFO. This conclusion ignores the fact that Cabarrus County had already adopted an APFO — without the VMP provision— pursuant to the statutory authority described in detail above. Only the VMP provision added after the session law raises any questions about statutory authority, as the APFO in effect at the time of the session law did not have such a provision. The session law clearly authorizes enforcement of the school adequacy review described in the preexisting, statutorily authorized APFO. But more importantly, the session law authorizes “approval of a method to address any inadequacy that may be identified as part of that review.” Id. This clause, in the context of enforcing an APFO, indicates the legislature’s awareness that future action might need to be taken; I see no functional distinction between “approval” and adopting, by a vote to approve, a method to address school inadequacy. Whatever the label, the session law specifically authorized Cabarrus County to create a method of addressing any inadequacy in school capacity it found during review. The VMP provision is exactly that: a method to address inadequacies identified in the school adequacy review. The General Assembly unequivocally authorized Cabarrus County to approve such a method through Session Law 2004-39.
Thus, even absent general statutory authority for the voluntary mitigation measures, Cabarrus County had authority under Session Law 2004-39 to modify its existing APFO by approving a method— voluntary
V. Conclusion
The majority’s opinion minimizes the expansive powers that the General Assembly has given counties to oversee and control development and school construction. The opinion overlooks the clear language of the General Statutes in Chapter 153A, and misreads the broad enabling language of Session Law 2004-39. Finally, the majority opinion ignores the increasingly desperate situation of many county governments in North Carolina, which are faced with rising populations, diminishing state funding for schools, and already burdensome property taxes. These county governments will be, by the majority’s opinion, deprived of an innovative but statutorily authorized tool to help meet their constitutional obligations regarding education. In my view, a carefully crafted ordinance like this one before us is exactly the kind of creative regulation of growth to keep pace with school capacity that the General Assembly intended. Therefore, I respectfully dissent.
. The County specifically requested severance as an alternative outcome at the Court of Appeals and before this Court.
. The majority states its holding as follows: “[AJbsent specific authority from the General Assembly, APFO’s that effectively require developers to pay an adequate public facilities fee to obtain development approval are invalid as a matter of law.”
. Admittedly, this is not the first time this Court has ignored its precedent in Homebuilders Ass’n and avoided applying the General Assembly’s interpretive mandate. In Smith Chapel Baptist Church v. City of Durham this Court declared the language of a city authority statute plain without any mention of section 160A-4 (the provision in the municipal powers statute identical to section 153A-4).
. The majority dismisses this argument, noting that the County repeatedly raised the VMP amounts, which it claims are not “reasonable.” The statutory text clearly uses the phrase “powers that are reasonably expedient,” with the word “expedient” modifying “powers” and the word “reasonably” (not “reasonable”) modifying “expedient.” The reasonableness of the VMP amounts has no bearing on whether the measure is “reasonably expedient to the exercise of’ the expressly granted powers. See N.C.G.S. § 153A-4.
. The majority addresses the statute of limitations issue by holding that the APFO is not a zoning ordinance and thus the challenge is not time-barred. But even calling the APFO a zoning ordinance does not create an issue with the statute of limitations. Three days before plaintiff filed the complaint, the Cabarrus County Board of Commissioners amended the Cabarrus County Zoning Ordinance by deleting the existing APFO and adding a substantially revised APFO. In my view, this action reset the two-month statute of limitations.
. Even the majority’s specific response to the severance discussion in this dissent provides no detailed analysis of any non-VMP provision of the APFO. The majority simply asserts that “the entire APFO simply does not fall within the ambit of zoning.” The majority provides no reasoning, statutory authority, or case citations for the idea that a county may not deny development applications, delay development, or require developers to modify non-conforming development applications, in light of inadequate school capacity.
. This APFO is not a temporary moratorium because it is narrowly conditioned on specific inquiries into school adequacy in the particular area proposed for development, and because it involves discretion rather than a blanket ban. However, the APFO conforms in broad terms to the requirements described in section 153A-340(h) for valid temporary moratoria.
. The majority states that “we cannot accept the County’s argument that the APFO’s VMP is ‘voluntary.’ ” This conclusion is not supported by the record. The majority acknowledges that the county ordinance provides alternative conditions on development should a developer refuse to pay the VMP. Though the majority casts these situations as rare — “the record indicates that only a few developments have been approved upon complying with these alternative conditions” — the fact that any developments at all have been approved without VMPs shows that the VMPs are, in fact, voluntary. The majority’s determination that the fee is not voluntary is not supported by the language of the ordinance, nor is it supported by the record.
. Though the majority does not reach the issue, I would agree with the plaintiffs that the session law does not give the County authority to act within municipalities without their permission.