Quality Built Homes Inc. v. Town of Carthage

IN THE SUPREME COURT OF NORTH CAROLINA
No. 315PA15-2
Filed 11 May 2018
QUALITY BUILT HOMES INCORPORATED and STAFFORD LAND COMPANY,
INC.
v.
TOWN OF CARTHAGE
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 436(2016), reversing and remanding an order allowing summary judgment entered on 17
October 2014 by Judge James M. Webb in Superior Court, Moore County, after the
Supreme Court of North Carolina remanded the Court of Appeals’ prior decision in
this case, Quality Built Homes Inc. v. Town of Carthage, 242 N.C. App. 521, 776
S.E.2d 897 (2015) (unpublished). Heard in the Supreme Court on 9 January 2018.
Ferguson, Hayes, Hawkins & DeMay, PLLC, by James R. DeMay; and
Scarbrough & Scarbrough, PLLC, by John F. Scarbrough, Madeline J.
Trilling, and James E. Scarbrough, for plaintiff-appellees.
Cranfill Sumner & Hartzog LLP, by Susan K. Burkhart, for defendant-
appellant.
Ellis & Winters LLP, by Stephen D. Feldman, Steven A. Scoggan, and Paul M.
Cox, for North Carolina Water Quality Association and the Municipalities of
Apex, Concord, Holly Springs, Jacksonville, Kannapolis, Surf City, and
Winston-Salem; and F. Paul Calamita for North Carolina Water Quality
Association, amici curiae.
Erwin, Bishop, Capitano & Moss, P.A., by J. Daniel Bishop and Joseph W.
Moss, Jr., for Union County, amicus curiae.
QUALITY BUILT HOMES INC. V. TOWN OF CARTHAGE
Opinion of the Court
ERVIN, Justice.
The issues before us in this case involve when the claims that plaintiffs Quality
Built Homes Incorporated and Stafford Land Company, Inc., have asserted against
defendant Town of Carthage accrued and whether plaintiffs’ claims are barred by the
one-, two-, -three-, or ten-year statute of limitations and the doctrine of estoppel by
the acceptance of benefits. After careful review of the claims asserted against the
Town in plaintiffs’ complaint and the applicable law, we conclude that plaintiffs’
cause of action accrued upon the Town’s exaction of the unlawful impact fees against
plaintiffs and that plaintiffs’ claims against the Town arise from a liability created
by statute that is subject to the three-year statute of limitations contained in N.C.G.S.
§ 1-52(2). In addition, we further conclude that the Town’s assertion that plaintiffs’
claims are barred by the doctrine of estoppel by the acceptance of benefits lacks merit.
As a result, we affirm the Court of Appeals’ decision, in part; reverse the Court of
Appeals’ decision, in part; and remand this case to the Court of Appeals for further
remand to the Superior Court, Moore County, for further proceedings not inconsistent
with this opinion.
The Town operates a public water and sewer system for the benefit of its
residents. In 2003, the Town adopted two ordinances providing for the assessment
of water and sewer impact fees known, respectively, as Ordinance § 51.076 and
Ordinance § 51.097. According to the Town, the required impact fees were to “be used
to cover the cost of expanding the water [and sewer] system[s],” with fee payments
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Opinion of the Court
due and owing at the time of final plat approval or at the time at which the payment
of a separate fee intended to cover the cost of connecting end-user customers to the
Town’s water and sewer system was made. As of the time that this action was
commenced, Quality Built Homes had paid the Town $66,000.00 in water and sewer
impact fees and placed an additional $4,000.00 into an escrow account following the
filing of its complaint1 and Stafford Land had paid the Town $57,000.00 in water and
sewer impact fees.
On 28 October 2013, plaintiffs filed a complaint against the Town in the
Superior Court, Moore County. In their complaint, plaintiffs asked the trial court “to
determine whether [the Town] has authority to enact and enforce portions of its
ordinance regulating the collection of [the water and sewer] impact fees” and sought
to recover the unlawful impact fees that they had paid to the Town, plus interest, as
authorized by N.C.G.S. § 160A-363(e), and attorneys’ fees, as authorized by N.C.G.S.
§ 6-21.7. On 23 June 2014, plaintiffs amended their complaint to include claims
asserting that the challenged impact fees violated the equal protection and due
process provisions of the North Carolina Constitution, resulted in unreasonable
discrimination in violation of N.C.G.S. § 160A-314, and contravened the Town’s
1 In spite of the requirement that the water and sewer impact fees be paid at the time
of final plat approval, Quality Built Homes was allowed to pay these fees at the time that it
received individual development permits. After the filing of plaintiffs’ complaint, an
additional $4,000.00 in impact fee payments made by Quality Built Homes was placed into
escrow by agreement of the parties, with the final disposition of this amount to be determined
at the conclusion of the present litigation.
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Opinion of the Court
impact fee ordinances. On 29 August 2014, the Town filed an answer to plaintiffs’
amended complaint in which it denied the material allegations of the amended
complaint and asserted a number of affirmative defenses, including claims that the
challenged impact fees had adequate statutory authorization and that plaintiffs’
claims were barred by the applicable statute of limitations and the doctrine of waiver
or estoppel through the acceptance of benefits. After the parties filed cross-motions
for summary judgment, the trial court entered an order on 17 October 2014 granting
summary judgment in favor of the Town. Plaintiffs noted an appeal from the trial
court’s order to the Court of Appeals.
On 4 August 2015, the Court of Appeals filed an unpublished opinion holding
that the Town had “acted within the authority conferred by North Carolina General
Statutes, sections 160A[-]312, -313, and -314 to collect a water and sewer impact fee.”
Quality Built Homes Inc. v. Town of Carthage, 242 N.C. App. 521, 776 S.E.2d 897,
2015 WL 4620404, at *5 (2015) (unpublished). On 5 November 2015, this Court
allowed discretionary review of the Court of Appeals’ decision. On 19 August 2016,
this Court filed an opinion reversing the Court of Appeals’ decision on the grounds
that the challenged impact fee ordinances were unlawful. Quality Built Homes, Inc.
v. Town of Carthage, 369 N.C. 15, 22, 789 S.E.2d 454, 459 (2016). More specifically,
we determined that, “[w]hile the enabling statutes allow [the Town] to charge for the
contemporaneous use of its water and sewer systems, the plain language of the Public
Enterprise Statutes clearly fails to empower the Town to impose impact fees for
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Opinion of the Court
future services.” Id. at 19-20, 789 S.E.2d at 458. In light of this determination, we
remanded this case to the Court of Appeals in order to allow it to address whether
plaintiffs’ claims were barred by the applicable statute of limitations or the doctrine
of estoppel by the acceptance of benefits.2 Id. at 18 n.2, 22, 789 S.E.2d at 457 n.2,
459.
On 30 December 2016, the Court of Appeals filed an unpublished opinion
holding that plaintiffs’ claims against the Town were subject to the ten-year statute
of limitations set out in N.C.G.S. § 1-56, Quality Built Homes Inc. v. Town of
Carthage, __ N.C. App. __, 795 S.E.2d 436, 2016 WL 7984235, at *2 (2016)
(unpublished), on the grounds that “North Carolina courts have held that ultra vires
claims for charging fees without statutory authority have a ten-year statute of
limitations,” id. (quoting Tommy Davis Constr. Inc. v. Cape Fear Pub. Util. Auth., No.
7:13-CV-2-H, 2014 WL 3345043, at *3 (E.D.N.C. July 8, 2014), aff’d, 807 F.3d 62(2015)). As a result, given that plaintiffs had paid the challenged impact fees within
ten years before filing their complaint in this case, the Court of Appeals held that
plaintiffs’ claims were not time-barred. Id. at *3. In addition, the Court of Appeals
held that plaintiffs were not estopped from pursuing their claims against the Town
on the grounds that “[o]ne cannot be estopped by accepting that which he would be
legally entitled to receive in any event” and that the General Assembly “clearly
2Although we had initially granted discretionary review with respect to these issues,
we dismissed the discretionary review petition relating to them as having been improvidently
granted. Quality Built Homes Inc., 369 N.C. at 22, 789 S.E.2d at 459.
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contemplated that even if a party received a ‘benefit’ . . . in exchange for paying an
illegal fee, the party should still receive a recovery of that fee.” Id. (first alteration in
original) (first quoting Beck v. Beck, 175 N.C. App. 519, 525, 624 S.E.2d 411, 415
(2006); and then citing N.C.G.S. § 160A-363(e)). As a result, the Court of Appeals
reversed the trial court’s order and remanded this case to the Superior Court, Moore
County, for the purpose of “mak[ing] the appropriate findings of fact as to (1) whether
defendant abused its discretion making attorneys’ fee mandatory and (2) a reasonable
attorneys’ fees award to plaintiff, whether discretionary or mandatory.” Id. at *4. We
granted the Town’s request for discretionary review of the Court of Appeals’ remand
decision.
In seeking relief from the Court of Appeals’ decision before this Court, the
Town argues that the Court of Appeals had ignored the fundamental legal principle
that a claim accrues when the right to maintain an action arises, which, in this case,
was the date upon which the challenged ordinances became effective, citing Williams
v. Blue Cross Blue Shield of North Carolina, 357 N.C. 170, 177-78, 581 S.E.2d 415,
423 (2003). According to the Town, the “continuing wrong” doctrine has no
application in this case given that, unlike the situation at issue in Williams, “the
[p]laintiffs, in this case, who are in the business of developing property, knew at the
moment the Ordinances were passed, that they would be subject to the Ordinances’
requirement of the payment of water and sewer impact fees.” (Emphasis omitted.)
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In addition, the Town argued that the “continuing wrong” doctrine has no application
to ultra vires claims.
In the Town’s view, the applicable statute of limitations for purposes of this
case is the one-year statute of limitations set out in 1-54(10) and N.C.G.S. §§ 160A-
364.1(b), which governs challenges to the validity of zoning and development
ordinances. According to N.C.G.S. § 160A-364.1(b), which applies to actions
“challenging the validity of any zoning or unified development ordinance or any
provision thereof adopted under [Article 19, Planning and Regulation of
Development],” N.C.G.S. § 160A-364.1(b) (2017), and N.C.G.S. § 1-54(10), which
applies to “[a]ctions contesting the validity of any zoning or unified development
ordinance or any provision thereof adopted under . . . Part 3 of Article 19 of Chapter
160A of the General Statutes,” id. § 1-54(10) (2017), the applicable statute of
limitations is one year. The Town contends that N.C.G.S. § 160A-363(e) should be
harmonized and construed with N.C.G.S. § 160A-364.1(b) given that they address the
same subject matter and that the two statutory provisions establish that a claim for
“refund for an illegal exaction in the development process is subject to the one-year
statute of limitations in N.C.G.S. § 160A-364.1(b),” citing, inter alia, In re M.I.W., 365
N.C. 374, 382, 722 S.E.2d 469, 475 (2012).
In the alternative, the Town asserts that the two-year statute of limitations
set out in N.C.G.S. § 1-53(1) operates to bar plaintiffs’ claims. More specifically, the
Town notes that N.C.G.S. § 1-53(1) provides that “[a]n action against a local unit of
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Opinion of the Court
government upon a contract, obligation or liability arising out of a contract, express
or implied,” must be filed within two years. N.C.G.S. § 1-53(1) (2017). The Town
contends that the two-year statute of limitations set out in N.C.G.S. § 1-53(1) applies
in this case because plaintiffs’ claims are tantamount to a common law claim for
breach of an implied contract given that a municipality’s proprietary actions mirror
those of a business, citing Town of Spring Hope v. Bissette, 305 N.C. 248, 250-51, 287
S.E.2d 851, 853 (1982) (stating that “[t]his rate-making function [pursuant to
N.C.G.S. § 160A-314(a)] is a proprietary rather than a governmental one, limited only
by statute or contractual agreement”). As a result, the Town contends that plaintiffs’
claims, which arise from the operation of the Town’s public enterprise system, should
be subject to the two-year statute of limitations set out in N.C.G.S. § 1-53(1).
In the event that plaintiffs’ claims are not subject to the two-year statute of
limitations set out in N.C.G.S. § 1-53(1), the Town contends that the applicable
statute of limitations is the three-year statute of limitations set out in N.C.G.S. § 1-
52(2) applicable to “a liability created by statute,” quoting N.C.G.S. § 1-52(2) (2017).
According to the Town, plaintiffs’ claims are subject to the three-year statute of
limitations set out in N.C.G.S. § 1-52(2) because the Town’s liability is authorized by
N.C.G.S. § 160A-174(b) and arises from the enactment of a pair of ultra vires
ordinances. In the alternative, the Town argues that, if the applicable statute of
limitations is not found in N.C.G.S. § 1-52(2), this case is governed by N.C.G.S. § 1-
52(5), which applies to claims “[f]or criminal conversation, or for any other injury to
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Opinion of the Court
the person or rights of another, not arising on contract,” quoting N.C.G.S. § 1-52(5)
(2017).3
According to the Town, this Court has only applied the “catch-all” ten-year
statute of limitations in cases involving resulting or constructive trusts, first citing
Orr v. Calvert, 365 N.C. 320, 720 S.E.2d 387 (2011); then citing in the following
sequence Cline v. Cline, 297 N.C. 336, 255 S.E.2d 399 (1979); Jarrett v. Green, 230
N.C. 104, 52 S.E.2d 223 (1949); Bowen v. Darden, 241 N.C. 11, 84 S.E.2d 289 (1954);
Sandlin v. Weaver, 240 N.C. 703, 83 S.E.2d 806 (1954); and Teachey v. Gurley, 214
N.C. 288, 199 S.E. 83 (1938). Although the Town concedes that, even though “there
may be a claim that is so unique that it bears no resemblance to any claim presently
envisioned by our legislature, thereby falling outside all of the multitudinous statutes
of limitations included in Chapter I, Subchapter II, Article 5, of the General Statutes,
this is not such a case.” (Emphases omitted.)
Finally, the Town argues that plaintiffs’ claims are barred by the doctrine of
estoppel by the acceptance of benefits. According to the Town, “one who voluntarily
proceeds under a statute and claims benefits thereby conferred will not be heard to
question its constitutionality in order to avoid its burdens.” Convent of the Sisters of
3 In its reply brief, the Town also suggested that the three-year statute of limitations
applicable to claims “for the recovery of an unlawful fee, charge, or exaction collected by a
county, municipality, or other unit of local government for water or sewer service or water
and sewer service” set out in N.C.G.S. § 1-52(15), which had been enacted by the General
Assembly after the filing of the Town’s initial brief, constituted a clarifying amendment to
N.C.G.S. § 1-52 and barred the maintenance of plaintiffs’ claims. Act of June 29, 2017, ch.
138, secs. 10(b), 11, 2017-4 N.C. Adv. Legis. Serv. 174, 180 (LexisNexis).
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St. Joseph v. City of Winston-Salem, 243 N.C. 316, 324, 90 S.E.2d 879, 885 (1956).
Allowing plaintiffs to recover the water and sewer impact fees that they have paid to
the Town would permit them to receive “an unfair windfall” given that plaintiffs’
developments have received needed permits and had access to the Town’s water and
sewer system for a period in excess of ten years and given that plaintiffs collected the
impact fee amounts from their own customers as part of the price paid to purchase
land in plaintiffs’ developments. As a result, for all of these reasons, the Town
contends that the Court of Appeals erred by remanding this case to the trial court for
the entry of an order awarding attorneys’ fees pursuant to N.C.G.S. § 6-21.7.
Plaintiffs, on the other hand, argue that the General Assembly’s decision to
rewrite N.C.G.S. § 1-52(15) to provide a three-year statute of limitations for claims
“for the recovery of an unlawful fee, charge, or exaction collected by a county,
municipality, or other unit of local government for water or sewer service or water
and sewer service,” Act of June 29, 2017, ch. 138, sec. 10(a), 2017-4 N.C. Adv. Legis.
Serv. 174, 180 (LexisNexis), narrows the statute of limitations dispute in this case to
whether the rewrite of N.C.G.S.§ 1-52(15) is a “clarifying amendment,” which serves
to bar plaintiffs’ claims, or an “altering amendment” inapplicable to plaintiffs’ claims,
rendering the “catch-all” ten-year statute of limitations set out in N.C.G.S. § 1-56
applicable to this case. In plaintiffs’ view, an amendment is deemed “altering” if it
changes the substance of the original law, citing Ray v. North Carolina Department
of Transportation, 366 N.C. 1, 9, 727 S.E.2d 675, 681 (2012), with the presumption
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being “that the legislature intended to change the original act by creating a new right
or withdrawing any existing one,” quoting Childers v. Parker’s Inc., 274 N.C. 256,
260, 162 S.E.2d 481, 483 (1968). Plaintiff contends, in view of the fact that N.C.G.S.
§ 1-52(15) required no clarification, that the subsequent amendment created an
addition to, rather than a clarification of, the existing statute, rendering plaintiffs’
claims subject to the “catch-all” ten-year statute of limitations, first citing Amward
Homes Inc. v. Town of Cary, 206 N.C. App. 38, 59, 698 S.E.2d 404, 419 (2010)
(applying the ten-year statute of limitations set out in N.C.G.S. § 1-56 to a claim for
the recovery of unlawful school impact fees), a’ffd per curiam by an equally divided
court, 365 N.C. 305, 716 S.E.2d 849 (2011), then citing, inter alia, Point South
Properties LLC v. Cape Fear Public Utility Authority, 243 N.C. App. 508, 515, 778
S.E.2d 284, 289 (2015) (applying the ten-year statute of limitations set out in N.C.G.S.
§ 1-56 to a claim for the recovery of unlawful water and sewer impact fees).
In addition, plaintiffs contend that the 2017 amendment to N.C.G.S. § 1-52(15)
does not apply to this case because accrued and pending causes of action constitute
vested rights, which are constitutionally protected, first citing Rhyne v. K-Mart Corp.,
358 N.C. 160, 176, 594 S.E.2d 1, 12 (2004) (explaining that, “[w]ithout question,
vested rights of action are property, just as tangible things are property”), then citing,
inter alia, Bolick v. American Barmag Corp., 306 N.C. 364, 371, 293 S.E.2d 415, 420
(1982) (explaining that, “[w]hen a statute would have the effect of destroying a vested
right if it were applied retroactively, it will be viewed as operating prospectively
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only”). As a result, plaintiffs argue that the effect of retroactively applying the 2017
amendment to N.C.G.S. § 1-52(15) would deprive them of their vested property rights.
In addition, plaintiffs contend that the one-year statute of limitations set out
in N.C.G.S. §§ 160A-364.1 and 1-54(10) has no application in this case because
plaintiffs’ claims do not stem from a zoning or unified development ordinance adopted
pursuant to Article 19 of Chapter 160A of the North Carolina General Statutes.
Instead, plaintiffs have challenged the validity of the water and sewer impact fees
that have been charged by the Town pursuant to the public enterprise authority
granted by Article 16 of Chapter 160A of the North Carolina General Statutes.
Similarly, the two-year statute of limitations set out in N.C.G.S. § 1-53(1) has no
application in this case because plaintiffs’ claims rest upon the exaction of unlawful
impact fees rather than upon the breach of an implied contract, citing Point Southern
Properties, 243 N.C. App. at 515, 778 S.E.2d at 289. Moreover, plaintiffs claim that
the three-year statute of limitations set out in N.C.G.S. § 1-52(2) does not apply in
this case because plaintiffs’ claims do not rest upon a liability created by statute.
Plaintiffs argue that, instead of arising under N.C.G.S. § 160A-363(e), the Town’s
liability for the refund of unlawfully exacted impact fees is derived from preexisting
common law principles, citing Smith Chapel Baptist Church v. City of Durham, 350
N.C. 805, 517 S.E.2d 874 (1999) (requiring the refunding of unlawfully exacted
stormwater impact fees paid prior to the adoption of N.C.G.S. § 153A-363(e)); and
Durham Land Owners Ass’n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200-12-
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(requiring the refunding of unlawfully exacted school impact fees paid prior to the
adoption of N.C.G.S. § 153A-324(b), the analogous statute for counties) disc. rev.
denied, 360 N.C. 532, 633 S.E.2d 678 (2006)). Finally, plaintiffs argue that their
claims are not barred by the three-year statute of limitations set out in N.C.G.S. § 1-
52(5) because their claims do not arise from an “injury to the person or rights of
another, not arising on contract.”
Plaintiffs assert that their claims against the Town accrued at the time of the
Town’s exaction of the unlawful water and sewer impact fees rather than upon the
adoption of the related impact fee ordinances. The Town’s argument to the contrary
is flawed, in plaintiffs’ opinion, because the impact fees that had been exacted from
them had been adopted annually rather than in the relevant ordinances. Simply put,
since a “plaintiff’s injury is the wrong entitling plaintiff to commence a cause of
action,” quoting Black v. Littlejohn, 312 N.C. 626, 639, 325 S.E.2d 469, 478 (1985),
plaintiffs sustained no injury until the Town actually exacted the unlawful impact
fees.
Finally, plaintiffs argue that a decision to accept the Town’s estoppel by the
acceptance of benefits argument would encourage the Town to engage in unlawful
conduct and unjustly enrich the Town. Plaintiffs contend that they received no
“benefit” from the payment of the unlawful impact fees given that their payments
were mandatory, citing Virginia-Carolina Peanut Co. v. Atlantic Coast Line Railroad
Co., 166 N.C. 62, 74, 82 S.E. 1, 5 (1914) (explaining that, in the event that a party’s
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“only alternative [is] to submit to an illegal exaction or discontinue its business,”
“[m]oney paid, or rather value parted with, under such pressure has never been
regarded as a voluntary act”). As a result, plaintiffs assert that the Court of Appeals’
decision should be affirmed.
Statutes of limitation are intended to afford security
against stale claims. With the passage of time, memories
fade or fail altogether, witnesses die or move away, [and]
evidence is lost or destroyed; and it is for these reasons, and
others, that statutes of limitations are inflexible and
unyielding and operate without regard to the merits of a
cause of action.
Estrada v. Burnham, 316 N.C. 318, 327, 341 S.E.2d 538, 544 (1986) (citation omitted),
superseded by statute, N.C.G.S. § 1A-1, Rule 11(a) (Cum. Supp. 1988), on other
grounds as stated in Turner v. Duke Univ., 325 N.C. 152, 163-64, 381 S.E.2d 706, 712-
13 (1989). “[S]tatutes of limitation are procedural, not substantive, and determine
not whether an injury has occurred, but whether a party can obtain a remedy for that
injury.” Christie v. Hartley Constr., Inc., 367 N.C. 534, 538, 766 S.E.2d 283, 286
(2014) (citation omitted). “[T]he statute of limitations begins to run once a cause of
action accrues,” McCutchen v. McCutchen, 360 N.C. 280, 283, 624 S.E.2d 620, 623
(2006) (citation omitted), with “[a] cause of action [having] accrue[d] . . . whenever a
party becomes liable to an action,” Matthieu v. Piedmont Nat. Gas Co., 269 N.C. 212,
215, 152 S.E.2d 336, 339 (1967); see also Register v. White, 358 N.C. 691, 697, 599
S.E.2d 549, 554 (2004) (stating that “a statutory limitations period on a cause of
action necessarily cannot begin to run before a party acquires a right to maintain a
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lawsuit”). “The accrual of the cause of action must therefore be reckoned from the
time when the first injury was sustained.” Mast v. Sapp, 140 N.C. 533, 537, 53 S.E.
350, 351 (1906).
As we understand the record, the first issue related to the statute of limitations
that must be addressed is identifying the point in time at which plaintiffs’ claims
against the Town accrued. In Williams, this Court addressed the validity of an
Orange County ordinance enacted pursuant to legislation adopted by the General
Assembly “authoriz[ing] transfer by the [Equal Employment Opportunity
Commission] to Orange County of employment discrimination complaints filed with
it originating in the county and transfer by [the Department of Housing and Urban
Development] to Orange County of housing discrimination complaints arising in the
county.” 357 N.C. at 174-75, 581 S.E.2d at 420. After the plaintiff filed a complaint
seeking relief for allegedly unlawful discrimination in violation of the ordinance, the
defendant filed an answer that included a counterclaim seeking a declaration “that
the enabling legislation and the Ordinance violated Article II, Section 24(1)(j) of the
North Carolina Constitution.” Id. at 177, 581 S.E.2d at 421. In holding that the
defendant’s challenge to the validity of the ordinance in question was not barred by
the applicable statute of limitations, id. at 178, 581 S.E.2d at 422, predicated upon
the plaintiffs’ theory that “the time period for [the defendant’s] filing of a
constitutional challenge to the Ordinance or the enabling legislation began to run on
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the date the enabling legislation or the Ordinance became effective,” id. at 178, 581
S.E.2d at 422, we explained that
[w]hen the enabling legislation and the Ordinance were
first enacted, [the defendant] was just another employer in
Orange County to which these new laws applied; any harm
to [the defendant] was both prospective and speculative.
The alleged wrongs to [the defendant] became apparent
only upon enforcement of the Ordinance through the filing
of lawsuits and proceedings against [the defendant].
Id. at 179, 581 S.E.2d at 423. In other words, this Court held in Williams that the
defendant’s challenge to the validity of the ordinance in question accrued when the
ordinance was enforced against that party rather than at the time of initial
enactment in reliance upon the “continuing wrong” doctrine. Id. at 180-81, 581 S.E.2d
at 424.
In determining whether a plaintiff is entitled to challenge the validity of an
ordinance as subjecting the plaintiff to what is tantamount to a continuing harm, “we
examine [the] case under a test that considers ‘[t]he particular policies of the statute
of limitations in question, as well as the nature of the wrongful conduct and harm
alleged.’ ” Id. at 179, 581 S.E.2d at 423 (second alteration in original) (quoting Cooper
v. United States, 442 F.2d 908, 912 (7th Cir. 1971)). For that reason, the reviewing
court “must examine the wrong alleged by [the plaintiff] to determine if the purported
violation is the result of ‘continual unlawful acts,’ each of which restarts the running
of the statute of limitations, or if the alleged wrong is instead merely the ‘continual
ill effects from an original violation.’ ” Id. at 179, 581 S.E.2d at 423 (quoting Ward v.
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Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)). “[I]f the same alleged violation was
committed at the time of each act, then the limitations period begins anew with each
violation . . . .” Id. at 179-80, 581 S.E.2d at 423 (alterations in original) (quoting Perez
v. Laredo Junior Coll., 706 F.2d 731, 733 (5th Cir. 1983), cert. denied, 464 U.S. 1042,
104 S. Ct. 708, 79 L. Ed. 2d 172 (1984)). Although the “continuing wrong” doctrine
has been treated, in some instances, as an “exception” to the usual rules governing
the operation of statutes of limitations, such a description of the doctrine in question
is a misnomer given that the “continuing wrong” doctrine does nothing more than
provide that the applicable limitations period starts anew in the event that an
allegedly unlawful act is repeated.
A classic example of the “continuing wrong” doctrine can be seen in Sample v.
John L. Roper Lumber Co., in which the plaintiffs alleged that the defendant had
repeatedly trespassed upon their property by unlawfully harvesting timber there. As
this Court stated in Sample, “every wrong invasion of plaintiffs’ property amounted
to a distinct, separate trespass, day by day, and for any and all such trespasses
coming within the three years the defendant is responsible.” 150 N.C. 161, 166, 63
S.E. 731, 732 (1909). Thus, consistent with the principle espoused in Williams, 357
N.C. at 179, 581 S.E.2d at 423 (quoting Ward, 650 F. 2d at 1147), the defendant’s
repeated trespasses onto the plaintiffs’ property constituted “ ‘continual unlawful
acts,’ each of which restart[ed] the running of the statute of limitations.” See also
Lightner v. City of Raleigh, 206 N.C. 496, 503-05 174 S.E.2d 272, 276-78 (1934)
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(applying the continuing wrong doctrine to a situation involving repeated discharges
of sewage onto the plaintiffs’ property). Similarly, this Court applied the “continuing
wrong” doctrine in Faulkenbury v. Teachers’ & State Employees’ Retirement System
of North Carolina, in which the plaintiffs alleged that the State had unlawfully
reduced their disability retirement payments. 345 N.C. 683, 690, 483 S.E.2d 422, 426
(1997). According to this Court, “the reductions in payments under the new systems
were deficiencies which have continued to the present time,” so that “the plaintiffs
[could] pursue claims for underpayments for three years before they commenced
actions,” id. at 695, 483 S.E.2d at 429-30, given that “the limitations period beg[an]
anew,” Williams, 357 N.C. at 179-80, 581 S.E.2d at 423 (quoting Perez, 706 F.2d at
733), with the making of each reduced payment.
On the other hand, in Jewell v. Price, the plaintiffs alleged that the defendant
building contractor had constructed a home for them that contained a negligently
installed a furnace. The Court concluded that the “defendant’s negligent breach of
the legal duty . . . occurred on November 15, 1958, when he delivered to [the plaintiffs]
a house with a furnace lacking a draft regulator and . . . having been installed too
close to combustible joists.” 264 N.C. 459, 462, 142 S.E.2d 1, 4 (1965). “[A]lthough
[the plaintiffs] had no knowledge of the invasion [of their rights] until . . . . [t]he fire
which destroyed their home on January 18, 1959, ‘the whole injury’ resulted
proximately from [the] defendant’s original breach of duty” “arising out of his
contractual relation with [the] plaintiffs . . . when he delivered to them a house with
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Opinion of the Court
a [negligently installed] the furnace.” Id. at 462, 142 S.E.2d at 4. As a result, since
the alleged violation of the plaintiffs’ legal rights was “entire and complete,” Sample,
150 N.C. at 164, 63 S.E. at 732, when the house containing the negligently installed
furnace was delivered to the plaintiffs, there was no repeated violation of their rights
sufficient to restart the running of the applicable statute of limitations at the time
that the fire occurred.
The essence of plaintiffs’ claim against the Town is that the Town has exacted
unlawful impact fee payments from them. In other words, “the nature of the wrongful
conduct and harm alleged,” Williams, 357 N.C. at 179, 581 S.E.2d at 423 (quoting
Cooper, 442 F.2d at 912), in plaintiffs’ complaint rests upon the Town’s collection of
water and sewer impact fees rather than the adoption of the impact fee ordinances.
As was the case in Williams, plaintiffs did not sustain any direct injury at the time
that the challenged impact fee ordinances were adopted. Instead, plaintiffs sustained
the injury upon which their claims rest when plaintiffs were required to make impact
fee payments in order to obtain approval for their development proposals. As a result,
since plaintiffs’ injury occurred when plaintiffs made the required impact fee
payments to the Town, we conclude that Quality Built Homes’ claims against the
Town accrued on various dates between 1 May 2006 through 21 January 2009 and
that Stafford Land’s claims against the Town accrued on various dates between 20
December 2005 through 30 June 2009.
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In identifying the statute of limitations that applies to plaintiffs’ claims against
the Town, we begin by noting that, according to well-established North Carolina law,
“[w]here one of two statutes might apply to the same situation, the statute which
deals more directly and specifically with the situation controls over the statute of
more general applicability,” Fowler v. Valencourt, 334 N.C. 345, 349, 435 S.E.2d 530,
533 (1993) (quoting Trs. of Rowan Tech. Coll. v. J. Hyatt Hammond Assocs., 313 N.C.
230, 238, 328 S.E.2d 274, 279 (1985)), and that, “[w]hen two statutes apparently
overlap, it is well established that the statute special and particular shall control over
the statute general in nature, even if the general statute is more recent, unless it
clearly appears that the legislature intended the general statute to control,” id. at
349, 435 S.E.2d at 534 (quoting Trs. of Rowan Tech., 313 N.C. at 238, 328 S.E.2d at
279). According to N.C.G.S. § 1-52(15), as amended by the 2017 General Assembly,
an action “[f]or the recovery of taxes paid as provided in [N.C.]G.S. [§] 105-381 or for
the recovery of an unlawful fee, charge, or exaction collected by a county,
municipality, or other unit of local government for water or sewer service or water
and sewer service” must be filed within three years from the date upon which the
plaintiff’s claim accrued. N.C.G.S. § 1-52(15) (2017). Although the 2017 version of
N.C.G.S. § 1-52(15) “deals more directly and specifically” with the nature of the claims
that plaintiffs have asserted against the Town, Fowler, 334 N.C. at 349, 435 S.E.2d
at 533, and, although the General Assembly specifically described the 2017 addition
to N.C.G.S. § 1-52(15) as “a clarifying amendment” that “has retroactive effect and
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Opinion of the Court
applies to claims accrued or pending prior to . . . the date” that the amended version
of N.C.G.S. § 1-52(15) became law, Ch. 138, sec. 11, 2017-4 N.C. Adv. Legis. Serv. at
180 (LexisNexis), we need not decide whether the amended version of N.C.G.S. § 1-
52(15) is entitled to retroactive effect, despite plaintiffs’ contention that they have a
vested property right in their claims against the Town, given our determination that
plaintiffs’ claims against the Town are governed by N.C.G.S. § 1-52(2), which applies
to “a liability created by statute, either state or federal.”
The gravamen of our previous decision in this case was that “the Public
Enterprise Statutes . . . clearly and unambiguously fail to give [the Town] the
essential prospective charging power necessary to assess impact fees” and that, since
“the legislature alone controls the extension of municipal authority, the impact fee
ordinances on their face exceed the powers delegated to the Town by the General
Assembly.” Quality Built Homes, 369 N.C. at 22, 789 S.E.2d at 459. As a result, the
essence of our earlier decision in this case was that the Town had acted unlawfully
by assessing a water and sewer impact fee not authorized by N.C.G.S. § 160A-314(a)
(2015) (providing that “[a] city may establish and revise . . . rents, rates, fees, charges,
and penalties for the use of or the services furnished by any public enterprise”). In
light of that fact, we have little difficulty concluding that the claim recognized in our
prior decision in this case was, when viewed realistically, one resting upon an alleged
statutory violation that resulted in the exaction of an unlawful payment which
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Opinion of the Court
plaintiffs had an inherent right to recoup.4 Although the Court of Appeals reached a
different conclusion in Point South Properties based upon the fact that N.C.G.S. §
162A-88 did not provide an explicit statutory right to seek recovery of the challenged
impact fees separate and apart from the statutory provisions governing the
defendant’s authority to charge the challenged impact fees, we do not believe that the
applicability of the three-year statute of limitations set out in N.C.G.S. § 1-52(2)
hinges upon such a fine parsing of the relevant statutory language.5 At an absolute
minimum, none of our prior decisions impose the limitation upon the applicability of
the three-year statute of limitations set out in N.C.G.S. § 1-52(2) upon which the
Court of Appeals’ decisions in Point South Properties and this case depend. See Town
of Morganton v. Avery, 179 N.C. 551, 552, 103 S.E. 138, 139 (1920) (applying the
three-year statute of limitations for liability created by statute to an action to enforce
a lien allegedly arising from a tax assessment on the grounds that, “[w]ithout the
creative force of the statute, the charge upon the land could not be made”);
Shackelford v. Staton, 117 N.C. 73, 75, 23 S.E. 101, 102 (1895) (applying the three-
year statute of limitations for liability created by statute in a case arising from the
4 In light of this determination, we need not decide whether the monetary payments
that the Town exacted from plaintiffs constituted “a tax, fee, or monetary contribution for
development or a development permit not specifically authorized by law.” N.C.G.S. § 160A-
363(e) (2017).
5Given that determination, we overrule the Court of Appeals’ decision with respect to
the applicability of the three-year statute of limitations set out in N.C.G.S. § 1-52(2) in Point
South Properties.
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Opinion of the Court
failure of a Clerk of Superior Court to properly index a judgment). As a result, we
conclude that the three-year statute of limitations for liabilities set out in N.C.G.S. §
1-52(2)6 applies in this case.7 Moreover, given that plaintiffs’ claims against the Town
accrued between 20 December 2005 and 30 June 2009 and given that plaintiffs filed
their complaint against the Town more than three years after the Town exacted its
last impact fee payment from plaintiffs, plaintiffs’ claims against the Town8 are
barred by the three-year statute of limitations set out in N.C.G.S. § 1-52(2).9
Finally, we reject the Town’s contention that plaintiffs’ claims are barred by
the doctrine of estoppel by the acceptance of benefits. In our opinion, Convent of the
6 In light of our determination that the three-year statute of limitations set out in
N.C.G.S. § 1-52(2) applies in this instance, we need not address the issue of the applicability
of the three-year statute of limitations set out in N.C.G.S. § 1-52(5).
7 Although the Town has asserted that a number of shorter limitations periods should
be deemed applicable in this instance, we do not find its arguments to that effect persuasive.
For example, we are unable to conclude that the one-year statute of limitations set out in
N.C.G.S. §§ 160A-364.1 and 1-54(10) has any application to this case because plaintiffs’
claims do not rest upon a challenge to the validity of the Town’s zoning or unified
development ordinances. Similarly, we are unable to conclude that the two-year statute of
limitations set out in N.C.G.S. § 1-53(1) has any application to this case because plaintiffs’
claims rest upon a charge for water or sewer service imposed in violation of N.C.G.S. § 160A-
314(a) rather than upon breach of an implied contract.
8 In determining that plaintiffs’ claims against the Town are time-barred by the three-
year statute of limitations set out in N.C.G.S. § 1-52(2), we note that the trial court, with the
consent of the parties, allowed Quality Built Homes to place $4,000.00 in impact fee payments
in escrow. The proper disposition of these monies is addressed at the conclusion of this
opinion.
9As a result of the fact that the three-year statute of limitations set out in N.C.G.S. §
1-52(2) applies to this case, the Court of Appeals necessarily erred in determining that
plaintiffs’ claims were subject to the ten-year statute of limitations set out in N.C.G.S. § 1-
56.
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Opinion of the Court
Sisters of Saint Joseph v. City of Winston-Salem has no application to the proper
resolution of this case. In Convent, the plaintiff’s predecessor in interest obtained a
special use permit in accordance with the applicable zoning ordinance and received
authorization to establish an otherwise prohibited elementary school pursuant to
certain agreed-upon conditions set out in the applicable permit. 243 N.C. at 325, 90
S.E.2d at 885. Although we held in Convent that, “by accepting the benefits of the
provisions of the zoning ordinance” the original purchaser “waived any right he might
have had to contest the validity of the ordinance,” id. at 325, 90 S.E.2d at 885, the
fact that the plaintiff’s predecessor obtained the right to engage in an otherwise
prohibited activity pursuant to the special use permit does not govern the outcome in
this case. Here, plaintiffs do not appear to have received any benefit from the
payment of the challenged water and sewer impact fees that they would not have
otherwise been entitled to receive. As we held in Virginia-Carolina Peanut Co., in an
instance in which “[t]he only alternative was to submit to an illegal exaction or
discontinue its business,” the payment of money “under such pressure[ ] has never
been regarded as a voluntary act.” 166 N.C. at 74-75, 82 S.E. at 5 (quoting Robertson
v. Frank Brothers Co., 132 U.S. 17, 24, 10 S. Ct. 5,7, 33 L. Ed. 236, 239 (1889)). Thus,
we affirm the Court of Appeals’ conclusion that plaintiffs’ claims against the Town
are not barred by the doctrine of estoppel by the acceptance of benefits. As a result,
for the reasons set forth above, the Court of Appeals’ decision is affirmed, in part, and
reversed, in part, and this case is remanded to the Court of Appeals for further
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Opinion of the Court
remand to the Superior Court, Moore County, for further proceedings not inconsistent
with this opinion, including the entry of an order determining the proper disposition
of the water and sewer impact fees that Quality Built Homes paid into escrow in
accordance with the consent order and addressing any other outstanding issues.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
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