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Judge to rule soon on developers' suit against county's ordinance

A judge is expected to rule soon on whether Union County can require residential developers to share the cost of building new schools in the rapidly growing suburban county.

A group of developers is suing the county for adopting an “adequate public facilities” ordinance in 2006.

Superior Court Judge Chris Collier said Thursday he intends to hand down his ruling in the next seven to 10 days.

The developers say the ordinance effectively levies impact fees on them. They contend that state law does not give counties the authority to impose such fees. They also say the ordinance is unconstitutional because it unfairly applies to developments larger than five lots.

Union County counters that the ordinance does not force builders to pay what it calls a “voluntary mitigation payment.” They say the ordinance allows developers to choose among several options. They can scale back their projects, wait until space in public schools catches up with the influx of students or help pay for new school construction now.

Union County Public Schools is spending hundreds of millions to open more than a dozen new schools by 2014. Union County is among the nation's fastest growing counties.

During a 3 1/2-hour hearing Thursday, Daniel Higgins, a developers' coalition attorney from Raleigh, dismissed as “all semantics” the county's contention that the money is a voluntary payment. The complaint says developers would have to pay nearly $15,000 per single-family unit.

Whether or not it's a fee is important, Higgins argued. The N.C. Court of Appeals in 2006 ruled that Durham County could not impose a school-impact fee because local governments aren't empowered by the N.C. legislature to do so.

Union County says the ordinance is not a revenue-generating measure but a planning tool, akin to zoning, said Mark White, a Missouri lawyer representing the county in the case. White was first hired as a consultant to help draft the ordinance. Keeping schools from overcrowding is part of a county's obligation to ensure the health, safety and general welfare of its citizens, White said.

Said Higgins: “The county is trying to cobble together phrases of the General Statutes to create the appearance that it has the authority, and it doesn't.”

The plaintiffs are the Union Land Owners Association, Craft Development LLC, Fairview Developers and R.D. Harrell Co. A second lawsuit seeking to overturn the ordinance was filed by developer William Nolan around the same time as the coalition's. Nolan withdrew his lawsuit earlier this month.