Finally, some common sense returns to local land use controls.
In a unanimous decision, a three judge panel of the NC Court of Appeals agrees with this JLF Spotlight report. Adequate Public Facilities Ordinances
(APFOs) that call for ?voluntary mitigation payments? (VMP) for school
construction are hardly ?voluntary,? they are legal extortion. If you want to
build houses for the enjoyment of your fellow citizens, the county ?makes you
an offer you cannot refuse:? pay us or we will not allow you to build
houses.
The Appeals Court called VMPs what they really are: forced
payments.
However, nowhere within
sections 153A-330 through 153A-335 does the General Assembly authorize
defendant [Union County] to adopt a land use regulation ordinance pursuant to
which a developer may be forced to make a payment of money, donate land, or
provide for school construction. (emphasis added)
Furthermore, the Appeals Court clearly places the financial responsibility
for funding school construction on the county not developers.
As we previously have stated, ?[f]oremost,
the duty of providing adequate school facilities is a duty of the County itself[.]?
And to make sure that Union County officials fully understand the
Court?s decision, the judges reiterate:
However, as with the use of
school impact fees in Durham Land Owners, defendant uses the APFO, which uses a
VMP and other similar measures, to shift impermissibly a portion of the burden
for funding school construction onto developers seeking approval for new
developments.
