AG 1998 10 19 - Laserfiche WebLink

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Having made such substantial investments and carried out the prior phases of its development, in reliance upon the approved PUD, it would be inequitable for the Board now to prohibit the petitioner from completing that development as approved. 4. The Board may not shift the burden of its constitutional responsibility to provide educational facilities to the petitioner and other private property owners in this manner. The North Carolina Constitution provides that "the People have a right to the privilege of education, and it is the duty of the State to guard and maintain that right." Art. 1, Sec. 15. It further provides that: "...the General Assembly may assign to units of local government .... responsibility for the financial support of the free public schools as it may deem appropriate..." The General Assembly has delegated the responsibility to provide school facilities to the counties. N.C. Gen. Stat. § 115C-408 states that "it is the policy of the State... that the facility requirements for a public education system will be met by County government." By implication, denial of the petitioner's plat on grounds that the County does not have adequate schools shifts the burden of this responsibility to the petitioner and other private property owners. As a consequence, such property owners must either assume that responsibility themselves or be deprived of use and enjoyment of their property without compensation in violation of the "takings" clause. That is not constitutionally permissible, and there is no statutory authority given to the County to make such an imposition, as discussed above. 5. The denial of this petition would violate the "equal protection" clause of the Constitution. The 14th Amendment of the U.S. Constitution also provides that it is unlawful for States (and their subdivision) to deprive citizens of "equal protection" under the law. Upon information and belief, the County has already approved some developments notwithstanding a shortage of school facilities, and application of the new "adequate public facilities" ordinance.