AG 1998 08 17 - Laserfiche WebLink

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STATE,lENT OF POSITION In support of its Petition C 98-06-(S), requesting that the Board of County Commissioners ("Board") grant approval of the preliminary plat for the FEghland Creek Subdivision - Areas G2-D9 on six (6) grounds stated therein, Westbrook Highland Creek, LLC ("petitioner") submits the following: 1. There is no statutory_ authority for the "adequate public facilities" ordinance N.C. Gen. Stat. § 153,4.-331 sets forth in detail the manner in which counties are authorized to "provide for (their) orderly growth and development" through approval of' subdivision applications, and what may be required of' developers with respect to roads, recreation areas, community service facilities and schools. The limits established are quite specific and broader for some than others (i.e., cotinties can require funding of roads and parks, but only a "reservation" of school sites, for subsequent purchase by the counties under certain conditions); and there is no provision that counties may prohibit development based upon the "inadequacy" of such facilities, as the "adequate public facilities ordinance" purports t.o do. See Greene v. City of Winston-Salem, 287 N.C. 66 (1975), White v. Union County, 93 N.C. App. 148 (1987), and Car~er v. Stanly County, 125 N.C. App. 628 (1997) (in which our courts have enforced the so- called "Dillon's Rule" that local governments cannot adopt ordinances which purport to regulate areas in which the General Assembly has established a complete and integrated regulatory scheme). Accordingly, that ordinance, adopted in the context of a definitive statutory scheme, is not authorized, and constitutes an ultra vires act on the part of Cabarrus County. Similarly, there is no provision in that statute nor any other statute delegating "police power" to counties for the protection of the public health, safety, morals and general welfare, to impose what amounts to a "moratorium" on development.