North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

Reattaching the Severance Argument to Lanvale Properties: Counties' Authority to Impose Non-Monetary Conditions on Housing Developments Affecting School Capacity

March 27, 2014

92 N.C. L. Rev. Addendum 120 (2014)

 

North Carolina is experiencing steady and substantial population growth, particularly in urban and suburban parts of the state. This sustained growth has challenged local governments to keep pace with an increasing demand for municipal services. As a result, public schools serving fast-growing communities have seen their facilities pushed far beyond capacity. To address the issue, counties and municipalities have attempted to assert greater control over the approval and implementation of proposed residential developments that threaten to overburden their existing infrastructure.

 

In Lanvale Properties v. County of Cabarrus, the Supreme Court of North Carolina found that one such attempt went too far. The court held that the Cabarrus County Board of Commissioners ("the Board") lacked the authority to adopt an adequate public facilities ordinance ("APFO") that would allow the Board to charge school impact fees for new residential real estate developments. The APFO had been adopted to remedy overcrowded public schools by conditioning approval for residential developments on sufficient school capacity. The school impact fee, also known as a voluntary mitigation payment ("VMP"), was one of six options from which developers could choose to satisfy the Board's concern with overcrowding. The APFO's other options (referred to collectively as "non-VMP provisions") included deferring development until a later date, phasing construction over a longer period of time, reducing development density, requiring developers constructing sufficient school facilities themselves, or proposing acceptable alternative arrangements. The VMP provision clearly exceeded the County's general zoning power but the court went further, striking down the entire ordinance.

 

This Recent Development argues that severance of the unauthorized VMP provision would have been more appropriate than striking down the entire APFO. The VMPs may have exceeded the County's zoning power, but the majority opinion in Lanvale Propertiesneglected to fully consider the County's authority to adopt the non-VMP provisions of the APFO. The non-VMP provisions were severable from the VMP provision and were independently valid zoning ordinances; therefore, the County should have been authorized to adopt them. In fact, some developers chose those options instead of the VMP provision. Both parties contemplated severance in their briefs, and the APFO included a severability clause. The court nonetheless dismissed the severability option based on a narrow construction of the zoning enabling statutes. By striking the entire APFO primarily on the basis of the VMP provision, the court deprived local governments of innovative and authorized remedies for public school overcrowding.

 

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