In Court of Appeals Case COA 15-371, Cape Fear Public Utility Authority (CFPUA) and New Hanover County (collectively referred to as defendants) appeal from an order granting summary judgment in favor of Point South Properties, LLC and Sanco Builders Corporation (Point South plaintiffs), on plaintiffs' claims arising from the payment of impact fees assessed by defendants. Similarly, in Court of Appeals Case COA 15-374, the same defendants appeal from summary judgment entered in favor of CB Windswept, LLC; Sellar's Cove, LLC; Telfair Summit, LLC; and CB Snows Cut Landing, LLC (Windswept plaintiffs), on claims arising from plaintiffs' payment of impact fees. Pursuant to the provisions of N.C.R.App. P. 40, the cases were consolidated for oral argument by this Court. Moreover, in that "both appeals involve common questions of law, as evidenced by defendants' decision to submit virtually identical appellate briefs in each case," the Court has consolidated "these appeals for the purpose of rendering a single opinion on all issues properly before the Court." Putman v. Alexander, 194 N.C. App. 578, 580, 670 S.E.2d 610, 613 (2009).
On appeal defendants argue that plaintiffs' claims were barred by the statute of limitations and the doctrine of laches, that defendants were entitled to charge water and sewer impact fees to plaintiffs, and that plaintiffs' constitutional claims lack merit. We conclude that plaintiffs' claims were not barred by the statute of limitations or the doctrine of laches, that the trial court properly entered summary judgment for plaintiffs on their claim that defendants' imposition of impact fees was ultra vires, and that it is not necessary to reach the merits of plaintiffs' constitutional claims.
I. Factual and Procedural Background
In 1983 New Hanover County created the New Hanover County Water and Sewer District (NHCWSD), which provided water and sewer service in the unincorporated areas of the county. In 1987 NHCWSD established an impact fee policy, pursuant to the terms of which the payment of a water and sewer impact fee was a precondition for a developer to receive a building permit. The rationale for this policy was that "the Water and Sewer District was working to expand out its infrastructure with the goal of providing water and sewer services to everybody throughout the county." In 2007 New Hanover County and the City of Wilmington entered into an interlocal agreement and created CFPUA, a water and sewer authority. Pursuant to the agreement creating CFPUA, all assets and liabilities of NHCWSD were transferred to CFPUA. In 2008 CFPUA replaced the previous ordinances of NHCWSD and of the City of Wilmington with a single CFPUA ordinance that did not assess impact fees for developments prior to the time that service was provided.
Plaintiffs are companies engaged in residential development in southern New Hanover County. Between 2003 and 2006, plaintiffs developed certain properties in New Hanover County (the subject properties). In order to obtain the necessary building permits, plaintiffs were required to pay NHCWSD impact fees associated with the provision of water and sewer service. The fees totaled approximately $238,000 paid by the Point South plaintiffs, and approximately $220,000 paid by the Windswept plaintiffs.
Aqua North Carolina, Inc., (Aqua) is a private utility company providing water and sewer service in various locations throughout North Carolina. At all times since their construction, Aqua has provided water and sewer service for the subject properties. When plaintiffs were first assessed impact fees, they informed defendants that water and sewer service was provided by Aqua and argued that they should not have to pay the fees because plaintiffs' properties were already served by Aqua and therefore the subject properties would not have any impact on the water or sewer facilities operated by NHCWSD. Defendants would not capitulate and ultimately plaintiffs paid the required fees in order to obtain building permits.
As early as 1976, defendants identified the unincorporated areas in the southern part of New Hanover County as a potential location for expansion of water and sewer service. Accordingly, defendants have included this area, which includes the subject properties, in their long range estimates of possible future demand for water and sewer service. It is undisputed, however, that defendants have never made an official decision to extend water and sewer service to any of the subject properties or taken any steps towards extending water and sewer service in these specific developments.
On 21 November 2012 the Point South plaintiffs filed suit against defendants, seeking the refund of the impact fees plaintiffs had paid, together with interest and attorney's fees. The Point South plaintiffs alleged that defendants' actions in assessing impact fees were ultra vires and violated plaintiffs' rights to due process and equal protection under the United States and North Carolina Constitutions. On 27 December 2012, defendants filed an answer and a motion to remove the Point South plaintiffs' action to the United States District Court for the Eastern District of North Carolina, on the basis of the Point South plaintiffs' inclusion in their complaint of claims arising under the U.S. Constitution. The parties each filed an amended complaint and answer in federal court. Thereafter, the Point South plaintiffs dismissed their federal constitutional claims and moved for remand to state court. On 26 March 2013 the case was remanded to the Superior Court of New Hanover County. On 5 November 2013 the Point South plaintiffs filed their second amended complaint. On 3 January 2014 defendants filed their answer, raising various defenses, including allegations that the Point South plaintiffs' claims were barred by the applicable statute of limitations and the doctrine of laches, and that the impact fees were authorized by statute. The Point South plaintiffs and defendants moved for summary judgment on 21 August 2014 and 27 August 2014, respectively.
As discussed above, the procedural histories of the claims filed by the Point South plaintiffs and the Windswept plaintiffs are slightly different, given that the Point South plaintiffs initially brought claims under the federal constitution and the Windswept plaintiffs initially sought class certification. Nevertheless, because the Point South plaintiffs voluntarily dismissed their federal claims, and the Windswept plaintiffs did not appeal the denial of their motion for class certification, the parties' summary judgment motions raised the same issues in both cases. Accordingly, on 4 September 2014 the trial court conducted a single hearing on the summary judgment motions of the parties in both cases, at which all plaintiffs were represented by the same law firm. On 23 September 2014 the trial court entered identical orders in both cases granting summary judgment for the plaintiffs in each case. Defendants timely entered notices of appeal from both summary judgment orders. As defendants have raised the same appellate issues in both cases and the plaintiffs have presented the same defenses, in the remainder of this opinion the term "plaintiffs" shall refer to both the Point South plaintiffs and the Windswept plaintiffs.
II. Standard of Review
The standard of review of a trial court's summary judgment order is well-established. Under N.C. Gen.Stat. § 1A-1, Rule 56(c), summary judgment is properly entered "if 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." "`In a motion for summary judgment, the evidence presented to the trial court must be admissible at trial, N.C.G.S. § 1A-1, Rule 56(e) [(2013)], and must be viewed in a light most favorable to the non-moving party.'" Patmore v. Town of Chapel Hill N.C., ___ N.C.App. ___, ___, 757 S.E.2d 302, 304 (quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004) (internal citation omitted)), disc. review denied, 367 N.C. 519, 758 S.E.2d 874 (2014). "If the trial court grants summary judgment, the decision should be affirmed on appeal if there is any ground to support the decision." Nifong v. C.C. Mangum, Inc., 121 N.C. App. 767, 768, 468 S.E.2d 463, 465 (1996) (citing Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)). "We review trial court orders granting or denying a summary judgment motion utilizing a de novo standard of review." Davis v. Woodlake Partners, LLC, ___ N.C.App. ___, ___, 748 S.E.2d 762, 766 (2013) (citing In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)).
III. Statute of Limitations
Defendants argue initially that plaintiffs' claims are barred by the applicable statute of limitations. We disagree.
We first clarify the nature of the parties' dispute as it relates to the statute of limitations. Defendants assert that plaintiffs'
Defendants contend that the parties have no disagreement over defendants' authority to impose the impact fees at issue and that plaintiffs "simply allege that the manner in which Defendants have exercised this statutory authority has resulted in liability." In addition, defendants maintain that plaintiffs have claimed that defendants "acted improperly under these statutes by not actually providing sewer service to the Properties." Defendants do not cite a basis in the record evidence for this contention. Our own review of plaintiffs' complaint reveals that plaintiffs assert that defendants lacked the authority to impose impact fees under N.C. Gen.Stat. § 162A-88, and that in their complaint plaintiffs do not ask defendants to provide water or sewer service, or complain of defendants' failure to provide service. Moreover, at the hearing on the parties' summary judgment motions, plaintiffs' counsel stated that:
We conclude that plaintiffs neither conceded defendants' authority to levy the impact fees at issue nor based their claims on defendants' failure to provide water and sewer service for the subject properties, and that plaintiffs do not contend that defendants breached a duty owed under N.C. Gen.Stat. § 162A-88. Instead, it is defendants who raise the statute as a defense to plaintiffs' claims, by arguing that the impact fees were authorized under N.C. Gen.Stat. § 162A-88.
In support of their position that the three year statute of limitations in N.C. Gen.Stat. § 1-52(2) applies to the instant case, defendants cite several cases in which the plaintiff sought to recover damages based on a statute that established the defendant's alleged liability. For example, defendants cite Wilson v. McLeod Oil Co., 327 N.C. 491, 506, 398 S.E.2d 586, 593 (1990), rehearing denied, 328 N.C. 336, 402 S.E.2d 844 (1991), in which the plaintiffs sought damages under N.C. Gen. Stat. § 143-215.93, which provides in part that "[a]ny person having control over oil or other hazardous substances which enters the waters of the State ... shall be strictly liable, without regard to fault, for damages to persons or property, public or private, caused by such entry[.]" In Wilson, our Supreme Court held that the plaintiffs' "statutory claim based on N.C.G.S. § 143-215.93 is barred by the statute of limitations found in N.C.G.S. § 1-52(2)[.]" Defendants contend that because plaintiffs' claims are based on N.C. Gen.Stat. § 162A-88, plaintiffs are therefore seeking recompense based on a "liability created by statute." Although N.C. Gen.Stat. § 162A-88 grants defendants the authority to levy fees for water and sewer "services furnished or to be furnished," the statute does not impose any duty on defendants, or expose them to liability. Accordingly, the cases cited by defendants are clearly distinguishable from the instant case.
We conclude that plaintiffs' claims are not based upon defendants' alleged breach of a duty or liability established by N.C. Gen.Stat. § 162A-88, and that the statute itself does not expose defendants to liability. Therefore, we hold that plaintiffs' claims are not subject to the three year statute of limitations for a claim based on a liability created by statute.
Defendants also assert, in the alternative, that plaintiffs' claims are barred by the two year statute of limitations set out in N.C.
Plaintiffs contend that the ten year statute of limitations set out in N.C. Gen. Stat. § 1-56 applies to their claims. N.C. Gen.Stat. § 1-56 provides that "[a]n action for relief not otherwise limited by this subchapter may not be commenced more than 10 years after the cause of action has accrued." Plaintiffs argue that, because no other statute establishes the statute of limitations for their claim, the residual or "catch all" period of ten years set out in N.C. Gen.Stat. § 1-56 applies. We agree.
Plaintiffs cite Amward Homes, Inc. v. Town of Cary, 206 N.C. App. 38, 698 S.E.2d 404 (2010), which applied the ten year statute of limitations in N.C. Gen.Stat. § 1-56 to the plaintiffs' claim for damages arising from payments of allegedly ultra vires impact fees, with Judge Jackson dissenting on the basis that plaintiffs' appeal was interlocutory. Upon appeal of Amward Homes to our Supreme Court, during which time Justice Jackson was seated on the Supreme Court and did not take part in the consideration of this case, in Amward Homes, Inc. v. Town of Cary, 365 N.C. 305, 716 S.E.2d 849 (2011), the Supreme Court stated that the remaining members of the Court were equally divided and that "[a]ccordingly, the decision of the Court of Appeals is left undisturbed and stands without precedential value." Amward, 365 N.C. at 306, 716 S.E.2d at 850. As a result, this Court's holding in Amward does not constitute binding precedent.
Plaintiffs also direct our attention to Tommy Davis Constr., Inc. v. Cape Fear Pub. Utility Authority, 2014 WL 3345043, 2014 U.S. Dist. LEXIS 92449 (E.D.N.C. July 7, 2014), in which the federal district court for the Eastern District of North Carolina granted summary judgment in favor of the plaintiff. In Tommy Davis, which is very similar to the case at hand, the plaintiff real estate developer sued the current defendants for damages based on plaintiff's payment of impact fees. In the opinion, which discusses the same issues raised in the present appeal, the court held that the statute of limitations for the plaintiff's claims was ten years. Although neither Amward nor Tommy Davis constitutes binding precedent, we agree with the holdings of these cases that the proper statute of limitations is ten years. It is undisputed in the case at bar that plaintiffs filed suit within ten years of their payment of the challenged impact fees, and we conclude that plaintiffs' claims are not barred by the statute of limitations.
Defendants also argue that plaintiffs' claims are barred by the doctrine of laches. "We [have] previously held, `laches is an equitable defense and is not available in an action at law.' When a `[p]laintiff's claims are legal in nature, not equitable[,]' laches cannot support judgment for the defendant." Cater v. Barker, 172 N.C. App. 441, 448, 617 S.E.2d 113, 118 (2005) (quoting City-Wide Asphalt Paving, Inc. v. Alamance County, 132 N.C. App. 533, 537, 513 S.E.2d 335, 338, disc. rev. denied and appeal dismissed, 350 N.C. 826, 537 S.E.2d 815 (1999) (internal citations omitted)), aff'd, 360 N.C. 357, 625 S.E.2d 778 (2006). In the cases cited by defendants, the plaintiffs sought injunctive or other equitable relief, while in this case plaintiffs' claims are legal rather than equitable. Therefore, the doctrine of laches is not applicable to this case.
Moreover, defendants have failed to produce evidence that they were prejudiced by plaintiffs' delay in bringing suit. Defendants assert that they invested the impact fees "into expansion of wastewater service capacity
V. Authority to Impose Impact Fees
Defendants argue that the trial court erred by granting summary judgment for plaintiffs, on the grounds that defendants' imposition of impact fees was authorized by N.C. Gen.Stat. § 162A-88, which provides in relevant part that:
Defendants contend that the impact fees were for services "to be furnished." We disagree, and conclude that plaintiffs produced uncontradicted evidence establishing that defendants could not present a prima facie case that defendants have ever decided or planned for water and sewer service "to be furnished" to the subject properties. Defendants have not responded to plaintiffs' evidence with any evidence demonstrating a genuine issue of material fact, making entry of summary judgment for plaintiffs proper in this case.
As a preliminary matter, we again spell out the nature of the parties' dispute, this time as it relates to defendants' authority to assess the impact fees at issue. At the hearing on this matter and in their appellate brief, defendants characterize their dispute with plaintiffs as an issue of whether defendants have been sufficiently prompt in arranging to extend water and sewer service to the subject properties. For example, defendants state in their appellate brief that "Plaintiffs contend that NHCWSD's actions were ultra vires because NHCWSD charged impact fees for properties that would not immediately be connected to its wastewater system." Plaintiffs' complaint, however, does not fault defendants for failing to "immediately" extend water and sewer service to the subject properties, or allege that it is the timeline of defendants' actions that renders the impact fees ultra vires. Rather, plaintiffs assert in their complaint that imposition of the impact fees was "beyond the statutory authority of the Defendants and any of their predecessors in interest," and assert in their appellate brief that the "Impact Fees were ultra vires as the fees assessed to Plaintiffs were neither for services that were furnished nor to be furnished." We conclude that the issue before us is not, as defendants have urged, whether defendants were required to "immediately" extend water and sewer service to plaintiffs after assessment of impact fees. Rather, we must decide whether there is evidence from which it might reasonably be found that defendants have ever evidenced a commitment to extending water and sewer service to the subject properties, regardless of the timeline.
The record demonstrates that defendants previously have stated their intention to extend service to specific locations and have set out a target timeline for doing so. For example, the 9 June 2010 CFPUA minutes includes the following:
The wastewater CIP was summarized as follows:
Defendants do not allege that their capital improvement plan includes any specific commitment to extend water and sewer service to any of the developments that comprise the subject properties. Given that these plans extend through Fiscal Year 2018, it appears that the CFPUA has no plans in the foreseeable future to extend service to the subject properties.
Moreover, at all times since their construction, water and sewer service for the subject properties has been provided by Aqua, and the defendants do not have the authority to condemn Aqua's property. N.C. Gen.Stat. § 40A-5, entitled "Condemnation of property owned by other condemnors," provides that a public condemnor, as defined in N.C. Gen. Stat. § 40A-3, "may condemn the property of a private condemnor if such property is not in actual public use or not necessary to the operation of the business of the owner." N.C. Gen.Stat. § 40A-5(b). Under N.C. Gen.Stat. § 40A-42(c), if a public condemnor such as CFPUA attempts to condemn
In this case, it is undisputed that Aqua has continuously provided water and sewer service and, as a result, that the property owned by Aqua is both in actual use and "necessary to the operation of the business of the owner." Therefore, defendants do not have the authority to exercise the right of eminent domain in order to condemn Aqua's property for their own use. In addition, the uncontroverted affidavit of Thomas J. Roberts, the president and Chief Operating Officer of Aqua, avers in relevant part that, as regards the Point South plaintiffs:
Mr. Roberts also executed an affidavit in regards to the Windswept plaintiffs, which was essentially identical except for the names of the relevant subdivisions. Thus, the uncontradicted record evidence establishes that Aqua has always provided water and sewer service to the subject properties, intends to continue providing water and sewer service, and that defendants have never contacted Aqua about purchasing the right to extend service to the subject properties.
To summarize, the uncontradicted record evidence shows that at the time that defendants required plaintiffs to pay impact fees and at all times since then, the following circumstances have existed:
We conclude that there is no evidence in the record that defendants have ever planned for water and sewer service "to be furnished" to the subject properties. We hold that under these factual circumstances defendants have failed to show any evidentiary basis for their contention that the fees were for service "to be furnished."
If we were to accept defendants' contention that the documents indicating a generalized goal of extending water and sewer service to unspecified parts of New Hanover County at an unspecified time in the indefinite future are sufficient to authorize imposition of impact fees for services "to be furnished," then fees could be imposed whenever a water and sewer board expressed even the vaguest intention to possibly extend service at some unspecified time
Sutton v. Aetna Casualty & Surety Co., 325 N.C. 259, 265, 382 S.E.2d 759, 763 (1989) (quoting Insurance Co. v. Chantos, 293 N.C. 431, 440, 238 S.E.2d 597, 603 (1977)).
This Court's holding that defendants have failed to show that impact fees were assessed for water and sewer service "to be furnished" is based solely upon the specific facts of this case, in which defendants produced no evidence that they had ever made a decision to furnish water and sewer service to the subject properties, and had taken no steps towards extending service to these locations. Accordingly, this Court expressly declines to state any criteria, guidelines, or standards for determination of whether the evidence in a particular case is adequate to support assessment of impact fees for services "to be furnished."
Moreover, it is noted that in McNeill v. Harnett County, 327 N.C. 552, 570, 398 S.E.2d 475, 485 (1990), our Supreme Court held "that the provisions of N.C.G.S. § 162A-88 authorizing user fees for services `to be furnished' [are] not limited to the financing of maintenance and improvements of existing customers." In McNeill, however, there was no question that sewer service would be provided to the plaintiffs. On the facts of this case, we agree with the analysis in Tommy Davis, which distinguished McNeill and stated that:
Tommy Davis, 2014 WL 3345043 at *4, 2014 U.S. Dist. LEXIS 92449 at *9. We conclude that plaintiffs produced evidence showing that defendants could not make a prima facie case that the impact fees were properly imposed for water and sewer service "to be furnished," and that defendants failed to produce evidence to rebut plaintiffs' showing. As a result, the trial court did not err by granting summary judgment in favor of plaintiffs.
In reaching this conclusion, we have rejected defendants' arguments urging us to reach a contrary result. Defendants direct our attention to N.C. Gen.Stat. § 153A-4, which states that:
Nonetheless, "[w]hen the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning." Lemons v. Old Hickory Council, 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988) (citations
Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 633-34, 630 S.E.2d 200, 203, disc review denied, 360 N.C. 532, 633 S.E.2d 678 (2006). We conclude that N.C. Gen.Stat. § 153A-4 is not applicable to the present case.
Defendants also contend that their assessment of impact fees was authorized under local ordinances. Assuming, without deciding, that the local ordinances cited by defendants might grant a broader right to impose impact fees than is allowed under N.C. Gen. Stat. § 162A-88, N.C. Gen.Stat. § 162A-19 provides that "[a]ll general, special or local laws, or parts thereof, inconsistent herewith are hereby declared to be inapplicable to the provisions of this Article." We conclude that defendants cannot rely upon a local ordinance to extend the right to assess impact fees beyond what is allowed under N.C. Gen. Stat. § 162A-88.
Defendants have also filed a Memorandum of Additional Authority citing this Court's unpublished opinion in Quality Built Homes Inc. v. Town of Carthage, 2015 WL 4620404, 2015 N.C.App. LEXIS 656 (N.C.Ct.App. Aug. 4, 2015). "An unpublished opinion `establishe[s] no precedent and is not binding authority[.]'" Long v. Harris, 137 N.C. App. 461, 470, 528 S.E.2d 633, 639 (2000) (quoting United Services Automobile Assn. v. Simpson, 126 N.C. App. 393, 396, 485 S.E.2d 337, 339, disc. review denied, 347 N.C. 141, 492 S.E.2d 37 (1997)). Furthermore, the primary issue in Quality Built Homes was whether the Town of Carthage was authorized to impose fees for service "to be furnished," and the case did not address the question of whether the assessment of impact fees was a reasonable exercise of governmental authority under circumstances similar to those presented in this appeal to this Court. We conclude that Quality Built Homes does not indicate that we should reach a different result in the present case.
Finally, defendants argue in their appellate brief that "genuine issues of material fact remain regarding the amount of damages to which plaintiffs may be entitled." This argument is without merit.
Plaintiffs produced records in discovery detailing the impact fees that were assessed against them, and defendants do not dispute the accuracy of the amounts stated in these records. Defendants' designee, Mr. Frank Styers, CFPUA's Chief Operating Officer, acknowledged in his deposition that these documents were defendants' business records and accurately set out the impact fees at issue.
We have held that the trial court did not err by granting summary judgment for plaintiffs on their claim that, on the facts of this case, defendants' imposition of impact fees was ultra vires and beyond their authority, and for recovery of plaintiffs' damages resulting therefrom. Having reached this conclusion, we have no need to address the parties' arguments regarding plaintiffs' claims under the North Carolina Constitution. We hold that the trial court did not err and that its order should be
Judges STEPHENS and McCULLOUGH concur.