Agenda - Planning Commission - 01/31/2013 - Special

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October 10, 2012 I Volume 6 I Issue 19 Zoning Bulletin action against the County. It asked the court to declare that the APFO was in- valid on various statutory and constitutional grounds. Among other things, Lanvale argued that the County lacked the authority, under the enabling statutes that provided its general zoning powers, to adopt the APFO. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the trial court issued summary judgment in favor of Lanvale. The court concluded that the County did not have inherent authority to enact its APFO pursuant to North Carolina's general zoning or subdivision statutes. The County appealed. The Court of Appeals affirmed, agreeing with the trial court. The County petitioned for discretionary review. Among other things, the County argued that the County was authorized to adopt the APFO pursuant to its "general zoning power" under §§ 153A-340(a) and 153A-341 of the North Carolina General Statutes. Section 153A-121(a) gives counties the general authority to adopt zoning ordinances. Section 153A-340(a) provides that county zoning ordinances may regulate: the height and size of structures, the percentage of lots that may be occupied; the size of yards, courts and other open spaces; the density of population; and the location and use of buildings, structures and land. Section 153A-341 describes the "public purpose" that zoning regulations may address, including to "facilitate the efficient and ade- quate provision of... schools." The County had contended that although §§ 153A-340(a) and 153A-341 did not expressly authorize the County's APFO, they conveyed implied authority for the APFO. The County had also argued that, in the alternative, the General Assembly's Session Law 2004-39 authorized the County to "adopt and enforce" the APFO as an exception to the general zoning and subdivision -regulation statutes. The Session Law provided: "... the County of Cabarrus or any municipality therein may enforce, within its jurisdiction, any provision of the school adequacy review performed under the Cabarrus County Subdivision Regulations, includ- ing approval of a method to address any inadequacy that may be identified as part of that review." DECISION: Judgment of court of appeals affirmed. The Supreme Court of North Carolina held that the enabling statutes that allowed the County to enact its zoning ordinances did not give the County implied authority to enact the APFO. In so holding, the court disagreed with the County's contention that §§ 153A-340(a) and 153A-341 conveyed implied authority for the APFO. The court found that the plain language of these enabling statutes did not give the County implied authority to enact its APFO. While § 153A-340(a) authorized the County to divide land into zoning districts and define permitted and prohibited land uses within particular zoning districts, the APFO did none of that. Instead, the APFO linked County approval of residential developments to the availability of space for students in the County's public schools. In short, the court found that the County's APFO could not be classified as a zoning ordinance, authorized under statutes enabling county zoning powers, because "the APFO simply [did] not `zone.' " As a result, the County could "not rely upon its general zoning authority to enact its APFO." 8 © 2012 Thomson Reuters