By DAVID BORAKS
DavidsonNews.net

With the tide of court rulings now flowing against it, the town of Davidson is taking steps to eliminate its Adequate Public Facilities Ordinance, or APFO. The big change is among the items up for review at the Davidson Planning Board Monday night, Feb. 25.

The board also will review plans for a one-story auto repair shop at Davidson Commons East, off Griffith Street near the Harris Teeter and Community School of Davidson. The meeting begins at 6pm at Davidson Town Hall, 216 S. Main St., Davidson.

END OF THE APFO?

The planning board on Monday will review revisions to the Planning Ordinance that include eliminating Section 18, the Adequate Public Facilities Ordinance, and all references to it elsewhere in the rules.

Davidson’s adequate public facilities ordinance was among a collection of new planning rules adopted in 2001 as the town looked for ways to control growth. It applies only to new residential projects.

The ordinance asks developers of new housing to share the costs of additional fire and police protection, public parks or other public services needed because of their projects. How much they pay is determined by a formula that assesses the developer for a portion of the cost of a published town “needs list” at the time projects are approved.

The ordinance established what public services and equipment were available in 2001, and set that as a baseline to follow amid future growth. As new residences are added, the APFO requires developers to help maintain the baseline level of services. It gives developers three main options:

• Pay for new services or facilities in their entirety to ensure that the need is met.
• Pay a pro-rated per-home fee to share in the costs of new services or facilities.
• Wait until the needs are met by some other means before proceeding with a project.

The town already has faced one lawsuit over the rules. In 2011, commissioners approved a settlement with the developer of the Summers Walk neighborhood, off NC 73 east of town. In that deal, the town agreed to accept only a fraction of the more than $1 million APFO payment it would have received for Summers Walk.

In addition, that suit cost the town nearly $50,000 in legal expenses, according to town officials at the time.

In recent years, North Carolina courts have ruled against towns and counties in a variety of cases involving similar ordinances. In most cases, courts have said that APFO payments are akin to “impact fees,” which aren’t allowed in North Carolina unless the legislature passes specific legislation allowing a community to impose them. Some towns and counties won passage of such legislation before 1990, but the legislature hasn’t approved any new bills since.

Local officials have defended their APFOs by arguing that fees are allowed under the general zoning authority that the state grants to counties, cities and towns. They say local governments have the right to establish a basic level of services, and to impose rules to maintain that level.

But the courts have disagreed. A year ago, the N.C. Supreme Court upheld a lower court ruling that struck down school-related development fees in Cary, outside Raleigh. Other court rulings have undone APFOs in Durham, Cabbarus and Union counties.

WOODIES AUTO SERVICE

The board also will take up a zoning change request for the proposed Woodies Auto Service, at Davidson Gateway and Peninsula Drives, in the Davidson Commons East conditional planning area. The auto repair shop would need an exception to the planning rules in the area, which require two-story buildings.

The town planning staff has recommended against the zoning change, because the single-story building does not meet the two-story requirement. The staff also said the auto repair shop doesn’t fit with the town’s goals for the area, as outlined in the Exit 30 Small Area Plan. And the proposed investment – about $350,000 for a half acre – is well below what other developers have invested in the area. The staff analysis says: “A building with only one active floor on that site vastly undervalues the potential commercial tax base for the town.”

RELATED LINKS

Feb. 25, 2013, Davidson planning board agenda on the town website.

Past coverage of the Summers Walk APFO lawsuit and the APFO on DavidsonNews.net.

North Carolina Home Builders Association web page on impact fees.

June 8, 2012, PlanCharlotte.org, “With ordinances dead or in limbo, planners ponder next steps”