No counties, you can’t force developers to pay for new schools

Sorry counties, but you can’t adopt an “adequate public facilities ordinance” as a means of requiring residential developers to pay for new schools.

The N.C. Supreme Court, in a split decision, said on Friday that counties can‘t use their zoning powers to adopt such a requirement. The court also said that Cabarrus County could not use a local law adopted by the General Assembly in 2004 related to annexation to enforce such an ordinance.

Justice Barbara Jackson, in writing for the 5-2 majority, said that the adequate facilities ordinance “impermissibly places the burden of funding public school construction on developers by using a revenue generating mechanism that is disguised as a zoning ordinance.”

In her dissenting opinion, Justice Robin Hudson writes that the court’s action “minimizes the expansive powers that the General Assembly has given counties to oversee and control development and school construction.”

Counties have been trying to find a way to make developers pay for new school construction for years. In 2006 the N.C. Court of Appeals struck down a Durham County ordinance that required developers to pay “impact fees” as a means of paying for school construction. The N.C. Supreme Court refused to take that case on appeal.

The message we appear to be getting from the courts is that the burden of school construction is expected to be borne by the broad population, not just a few developers and new homebuyers.

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