tag: North Carolina Land Use Litigator: Imposition Or Increase In Fees/Charges Relating To Subdivision Development

Tuesday, September 21, 2010, 3:15 PM

Imposition Or Increase In Fees/Charges Relating To Subdivision Development



Effective September 1, 2009, the North Carolina General Assembly added electronic notice requirements and public comment opportunities with respect to the imposition or increase of fees. S.L. 2009-436, which added N.C.G.S. Sections 130A-64.1, 153A-102.1, 160A-4.1 and added N.C.G.S. Section 162A-9(a1), imposed the following requirements:





  • If a covered entity has a web site that is maintained by its employees, it must provide notice on the web site of the imposition of, or increase in, certain fees or charges at least 7 days before the first meeting at which the fees or charges are on the agenda for consideration. The local government or authority need not provide similar notice if the fees or charges are discussed or considered at subsequent meetings;



  • The governing board of a covered entity must provide a period of public comment on the imposition of, or increase in, the fees or charges during the first meeting at which the fees or charges are discussed;



  • Neither of the above two requirements applies if the imposition of, or increase in, the fees or charges are included in the proposed budget ordinance that the covered entity‚Äôs budget officer submits to the governing board during the annual budget process, in accordance with N.C.G.S. 159-12.


A "covered entity" appears to include sanitary districts (Chapter 130A), counties (Chapter 153A), municipalities (Chapter 160A), and water and sewer authorities (Chapter 162A). As to the applicable "fees or charges," a definition may be more squirrely. The new statutory language handed down by S.L. 2009-436 makes clear that the e-notice and public comment requirements apply to the assessment by a covered entity of "fees or charges applicable solely to the construction of development subject to" the subdivision regulation provisions of N.C.G.S. Chapters 153A and 160A. Specifically, it remains uncertain under this language as to whether the notice and comment obligations apply either to (a) fees or charges assessed during the construction phase of subdivision development (which would include charges/fees assessed by sanitary districts or water and sewer authorities) or (b) fees or charges that are themselves "subject to" the subdivision regulations (which would not include charges/fees assessed by sanitary districts or water and sewer authorities).

Time heals all wounds, however, and even answers a few questions. As Professor Millonzi points out
here, a subsequent amendment likely answers for us the question as to the subject "fees or charges." By S.L. 2010-180, the General Assembly focused the notice requirements so that qualifying adverstisement to "interested parties" include two of the following four "means of communication," broadening away from the website-only approach of the 2009 law:



  • Display the notice in a prominent location on a web site managed or maintained by the covered entity;



  • Display the notice in a prominent physical location, including, but not limited to, any government building, library, or courthouse;



  • E-mail the notice to a list of interested parties that is created by the covered entity for purposes of complying with the 2010 Act;



  • Fax the notice to a list of interested parties that is created by the covered entity for purposes of complying with the 2010 Act.

This "update," which ironically accounts for a website-less world, is interesting enough. Where our answer with regard to the "fees or charges" comes in, however, is by the fact that the 2010 Act leaves in place its application to sanitary districts (Chapter 130A) and water and sewer authorities (Chapter 162A). Thus, it seems to be a more fair reading that option (a) from above rules the day: the applicable "fees or charges" are those assessed with liberal relation to the construction of subdivision development, such as plan review fees, permit fees, inspection fees, water and sewer tap or connection fees, and so on.



The bottom line is that local governments and certain authorities should take care to properly advertise when amending or adding fees, and developers should consider the quality of the same when adversely affected thereby.



Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients, from local governments to businesses, in both state and federal venues throughout North Carolina.



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