Municipal — Real Property – Subdivision Approval – Illegally Exacted Funds – First Impression – Off-Site Improvement Requirements

Although the plaintiff developer spent a total of $993,584 to meet its obligations under the parties’ Mitigation Measures Agreement,” much of that sum was paid to other parties, and G.S. § 160A-363(e) required the defendant-town to repay the developer only the amount the developer paid directly to the town.

We affirm summary judgment for the developer. We also affirm the trial court’s award of attorney’s fees. However, we reverse the judgment amount and remand for a determination of precisely how much plaintiff paid directly to the town.

G.S. § 160A-363(e) provided, “If the city is found to have illegally exacted a tax, fee, or monetary contribution for development or a development permit not specifically authorized by law, the city shall return the tax, fee, or monetary contribution plus interest…” Although the developer spent a total of $993,584 to meet its obligations under the parties’ “Mitigation Measures Agreement,” the trial court determined that only a portion of that sum was paid directly to the town, i.e., was “exacted” by the town.

Neither party cites any case that directly addresses this issue in interpreting § 160A-363(e). However, we agree with the town’s interpretation of the text of § 160A-363(e). Although the statute is silent as to whether the town must be the recipient of the funds to be returned, the town cannot “return” that which it has not received. Thus, we affirm the trial court’s conclusion of law that funds paid to entities other than the town were not “exacted” by the town.

Other Issues

G.S. § 160A-372(f) provided that, in lieu of requiring a developer to build the streets of its planned subdivision, a town could require the developer to provide funds that the town could use for the construction of roads to serve residents and invitees of the subdivision, and those funds could be used for roads which served more than one subdivision within the area. This statute did not authorize the defendant-town to require the plaintiff-developer to make off-site improvements to account for increases in traffic attributable to the proposed subdivision.

Because the town violated a statute or case law setting forth unambiguous limits on its authority, the trial court did not err in awarding attorneys’ fees to the developer.

With the exception of the motion for litigation costs and attorneys’ fees pursuant to G.S. §§ 1-263 and 6-21.7, every claim the developer raised in its complaint was resolved by the issuance of a writ of mandamus. The trial court correctly determined that the developer’s claims, other than the motion for litigation costs and attorneys’ fees, were rendered moot by the issuance of the writ of mandamus, in that each claim sought relief from the town’s requirement of off-site improvements as a condition of development approval. Because the issuance of the writ of mandamus provided the relief that the developer sought, at that point, further determination of the developer’s remaining claims could not have any practical effect on the existing controversy. Thus, the trial court did not err in dismissing any remaining claims as moot.

Affirmed in part, reversed in part and remanded.

TAC Stafford, LLC v. Town of Mooresville (Lawyers Weekly No. 011-090-22, 21 pp.) (Valerie Zachary, J.) Appealed from Iredell County Superior Court (Martin McGee, J.) Madeline Trilling and James Scarbrough for plaintiff; Steven Bader and Patrick Flanagan for defendant. 2022-NCCOA-217