CHARLOTTE – A federal judge has returned a constitutional challenge of Davidson’s growth-management ordinance to state courts, finding that it presents “an important and pressing local issue” for the state’s high courts to decide.
U.S. District Court Judge Graham Mullen’s ruling presages a long, expensive state court battle that may require the Town of Davidson and developers of the Summers Walk community to take to the N.C. Supreme Court.
Davidson already has spent $48,548 since 2007 defending its ordinance. That expense doesn’t count the time Town Attorney Rick Kline has put into the case, according to Public Information Officer Megan Pillow Davis.
Earlier this year, Mullen denied the town’s request to dismiss Forest City Land Group’s suit challenging the town’s Adequate Public Facilities Ordinance. Town officials consider the ordinance a crucial tool in managing residential and commercial growth so new development does not overwhelm police, fire and park services.
The facilities ordinance sets a formula for determining how much pressure a new subdivision or shopping center will place on all three town services. The ordinance says the town won’t approve new subdivisions that would overload any of those services. The developer can either wait to build until the town provides the service or pay a fee to the town to provide those services. Such fees are commonly known as “impact fees.”
Though the two sides disagree on a number of points, Roy Michaux, attorney for Forest City Land Group, developers of Summers Walk on N.C. 73, contends that the N.C. Court of Appeals has struck down other growth-management ordinances that assessed fees to pay for additional local schools. Michaux also advised Judge Mullen of the N.C. Supreme Court refusal on Oct. 6 to hear Union County’s appeal of the ruling striking its school-impact ordinance.
In those opinions, the appeals court said the N.C. Constitution requires the state and local governments to pay for public schools, and the legislature has previously refused to approve “school impact fees.” Andrew Santaniello, the town’s attorney, pointed out, however, that Davidson’s ordinance does not address schools at all.
Judge Mullen agreed with Santaniello, adding that, “the law on other (adequate public facility ordinances) is still a “gray area” under state law. … (The town and Forest City Land) implicitly acknowledge that this case comes down to whether or not the (adequate public facility ordinance) is constitutional under North Carolina law.
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