Builders association plans to sue Cabarrus County, challenging growth-control ordinance

Published 12:00 am Wednesday, December 2, 2009

Staff Report
The Cabarrus County Building Industry Association announced Thursday it will sue Cabarrus County, challenging the county’s ordinance providing for limits on growth and assessing a fee on each new home.
Jim Scarbrough, a Concord attorney representing the builders association, announced the group’s planned lawsuit at Thursday’s meeting of the Cabarrus County Planning and Zoning Commission.
“This lawsuit will affect Cabarrus County, all of its towns, the local building industry and the many local business that support the building industry,” Tad Dunn, regional director of the Real Estate and Building Industry Coalition, said in an e-mail.
The Cabarrus builders group “believes it is critical to have a neutral third-party decision from the courts to determine the legality of the” Adequate Public Facilities Ordinance.
Dunn noted that two lawsuits were filed against a similar ordinance in Union County in 2006.
In a two-page memo explaining the builders association’s decision, Scarbrough noted Cabarrus officials have dramatically increased the fee assessed through the ordinance ó “from $500 in 1998 to a current rate of $8,617 per lot ń a 1,623 percent tax increase on a single industry.”
Scarbrough called the fee a “legally questionable tax on new housing.”
The attorney said the builders association decided to go to court after Cabarrus officials began considering restricting the number of lots built per year in certain areas of the county.
Scarbrough said the builders association “is not aware of counties in North Carolina that restrict the number of lots that can be built per year.”
Annual increases in the per-lot fee, “coupled with a restriction of lots built per year, is not feasible for the building industry,” Scarbrough said. The Cabarrus ordinance “is eliminating local jobs and hurting the local businesses that rely on the housing industry.”
The builders’ attorney called the Adequate Public Facilities Ordinance a “complex and confusing document to developers and local officials.”
And while Catawba, Chatham and Orange counties “have all received tangible authority from the General Assembly to charge impact fees on new housing to help defray the cost of schools and other capital improvements. Cabarrus County has never received this authority from the General Assembly,” Scarbrough said.
Although Cabarrus officials cited the county’s “general zoning authority” as a basis for charging the school fee, Scarbrough said appellate courts rejected that very argument in a 2006 Durham County case.
“According to the Court of Appeals, building schools is (a) governmental service to the public, and local government cannot charge a fee for such a basic service unless clear and specific authority has been delegated by the General Assembly,” the attorney said in his two-page statement.

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