WidenI77 v. NC Dep't of Transp. ( 2017 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA16-818
    Filed: 2 May 2017
    Mecklenburg County, No. 15 CVS 1076
    WIDENI77, Plaintiff
    v.
    NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, and I-77 MOBILITY
    PARTNERS LLC, and STATE OF NORTH CAROLINA, Defendants
    Appeal by plaintiff from order entered 24 February 2016 by Judge W. Osmond
    Smith III in Mecklenburg County Superior Court. Heard in the Court of Appeals
    8 February 2017.
    Arnold & Smith, PLLC, by Paul A. Tharp and Matthew R. Arnold, for plaintiff.
    Attorney General Joshua H. Stein, by Special Deputy Attorney General Scott T.
    Slusser, for the North Carolina Department of Transportation and the State of
    North Carolina.
    Gibson, Dunn & Crutcher LLP, by Mitchell A. Karlan and Jerilin Buzzetta, and
    Parker Poe Adams & Bernstein LLP, by Michael G. Adams and Morgan H.
    Rogers, for I-77 Mobility Partners LLC.
    CALABRIA, Judge.
    WidenI77 (“plaintiff”) appeals from an order granting summary judgment in
    favor of the North Carolina Department of Transportation (“NCDOT”), I-77 Mobility
    Partners LLC (“Mobility”), and the State of North Carolina (“State”) (collectively
    referred to as “defendants”) and dismissing plaintiff’s claims with prejudice. For the
    reasons stated herein, we affirm the order of the trial court.
    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    I.     Background
    On 26 June 2014, NCDOT and Mobility, a Delaware limited liability company,
    entered into a comprehensive agreement (the “Comprehensive Agreement”) for the I-
    77 HOT Lanes Project (the “Project”). The I-77 corridor is “one of the most congested
    corridors in the [S]tate” and the Project offered a “comprehensive congestion
    management solution for approximately [twenty-six] miles of the I-77 corridor
    through the use of HOV3+ policy and managed lanes and supports future expansion
    of transit.” The Comprehensive Agreement was a product of the State’s “desires to
    facilitate private sector investment and participation in the development of the
    State’s transportation system via public-private partnership agreements[]” pursuant
    to N.C. Gen. Stat. § 136-18(39) et seq. (“the P3 Statute”).
    The P3 Statute provides, in pertinent part, that the NCDOT is vested with the
    power to
    enter into partnership agreements with private entities,
    and authorized political subdivisions to finance, by tolls,
    contracts, and other financing methods authorized by law,
    the cost of acquiring, constructing, equipping, maintaining,
    and operating transportation infrastructure in this State,
    and to plan, design, develop, acquire, construct, equip,
    maintain, and operate transportation infrastructure in this
    State.
    N.C. Gen. Stat. § 136-18(39) (2015).
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    Through the Comprehensive Agreement, NCDOT granted Mobility “the
    exclusive right, and [Mobility] accepts the obligation, to finance, develop, design,
    construct, operate and maintain the Project[.]” This included the exclusive right to
    impose tolls and incidental charges upon the users of the High Occupancy Toll
    (“HOT”) lanes; to establish, modify, and adjust the rate of such tolls and incidental
    charges in accordance with law; and to enforce and collect the tolls and incidental
    charges from the users of the HOT lanes in accordance with the terms and conditions
    of the Comprehensive Agreement.
    On 20 January 2015, plaintiff filed a “Complaint for Declaratory Judgment and
    Preliminary and Permanent Injunctive Relief.” Plaintiff sought a declaration as to
    the constitutionality of the P3 Statute and the Comprehensive Agreement between
    the NCDOT and Mobility. Plaintiff’s arguments included the following, inter alia:
    the General Assembly unconstitutionally delegated authority to the NCDOT to set
    toll rates without adequate standards and safeguards for which to exercise that
    power, to contract with Mobility and allow an unlimited rate of return on investment,
    and to contract with Mobility and allow the NCDOT and the State to compensate
    Mobility for its tax liabilities; violation of taxing power; violation of the public purpose
    doctrine; violation of due process; contrary to public policy; lack of authority; illegal
    contract; and motion for preliminary and permanent injunction.
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    On 9 March 2015, the trial court entered an order finding that plaintiff “ha[d]
    not shown a sufficient likelihood of success on the merits to justify granting a
    preliminary injunction” and denying plaintiff’s motion for a preliminary injunction.
    On 15 June 2015, Mobility filed a motion for summary judgment.              On
    19 June 2015, the State and the NCDOT filed a motion for summary judgment. On
    13 November 2015, plaintiff filed a motion for summary judgment.
    On 24 February 2016, the trial court entered an order concluding as follows:
    4. As to the Motions for Summary Judgment filed by each
    party, it should be noted that it is not within the
    province, function or duty of the Court to determine the
    desirability or wisdom of the legislation or the contract
    at issue. These policy decisions are within the purview
    of the legislature and the North Carolina Department
    of Transportation.     The subject legislation is not
    unconstitutional as applied, nor is the contract
    unlawful.
    5. As to the Motions for Summary Judgment filed by each
    party, there is no genuine issue as to any material fact,
    that Defendants are entitled to a judgment as a matter
    of law, and that Plaintiff is not entitled to judgment as
    a matter of law.
    Accordingly, the trial court granted defendants’ motions for summary judgment and
    denied plaintiff’s motion for summary judgment. Plaintiff’s claims were dismissed
    with prejudice.
    On 22 March 2016, plaintiff filed notice of appeal.
    II.     Standard of Review
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    “Our standard of review of an appeal from summary judgment is de novo[.]” In
    re Will of Jones, 
    362 N.C. 569
    , 573, 
    669 S.E.2d 572
    , 576 (2008) (citation omitted). “In
    ruling on a motion for summary judgment the evidence is viewed in the light most
    favorable to the non-moving party.” Hinson v. Hinson, 
    80 N.C. App. 561
    , 563, 
    343 S.E.2d 266
    , 268 (1986) (citation omitted). Rule 56 of the North Carolina Rules of Civil
    Procedure provides that summary judgment shall be granted “if the pleadings,
    depositions, answers to interrogatories, and admissions on file, together with the
    affidavits, if any, show that there is no genuine issue as to any material fact and that
    any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule
    56(c) (2015).
    The showing required for summary judgment may be
    accomplished by proving an essential element of the
    opposing party’s claim does not exist, cannot be proven at
    trial, or would be barred by an affirmative defense . . . or
    by showing through discovery that the opposing party
    cannot produce evidence to support an essential element of
    her claim[.]
    Dobson v. Harris, 
    352 N.C. 77
    , 83, 
    530 S.E.2d 829
    , 835 (2000).
    III.   Discussion
    On appeal, plaintiff argues that the trial court erred by: (A) concluding that
    the North Carolina General Assembly’s delegation of power to the NCDOT and
    NCDOT’s arrangement with Mobility did not constitute an unconstitutional
    delegation of power; (B) concluding that the expenditure by the NCDOT and the State
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    served a public purpose and was constitutional under Article V, Section 2(1) of the
    North Carolina Constitution; (C) concluding that the Comprehensive Agreement did
    not violate the Turnpike Statute; and (D) concluding that the North Carolina General
    Assembly did not unconstitutionally delegate its authority to tax to the NCDOT in
    violation of Article I, Section 8 and Article II, Section 23 of the North Carolina
    Constitution and the Due Process Clause of the United States Constitution. We
    address each argument in turn.
    A.     Delegation of Power
    Plaintiff argues that the trial court erred by concluding that the General
    Assembly’s delegation of power to the NCDOT and NCDOT’s arrangement with
    Mobility did not constitute an unconstitutional delegation of power. Specifically,
    plaintiff contends that the General Assembly’s delegation of power pursuant to the
    P3 Statute “features an absolute, unfettered, unlimited, unilateral and therefore
    unconstitutional delegation of authority to an agency and private company.” Plaintiff
    maintains that the P3 Statute grants unto Mobility the absolute authority to set toll
    rates without any meaningful input or control by the NCDOT or General Assembly.
    We are not convinced by plaintiff’s arguments.
    “It is well settled in this State that the courts have the power, and it is their
    duty in proper cases, to declare an act of the General Assembly unconstitutional - but
    it must be plainly and clearly the case. If there is any reasonable doubt, it will be
    -6-
    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    resolved in favor of the lawful exercise of their powers by the representatives of the
    people.” McIntyre v. Clarkson, 
    254 N.C. 510
    , 515, 
    119 S.E.2d 888
    , 892 (1961) (citation
    omitted). “In passing upon the constitutionality of a legislative act it is not for this
    Court to judge its wisdom and expediency. These matters are the province of the
    General Assembly. Rather, it is the Court’s duty to determine whether the legislative
    act in question exceeds constitutional limitation or prohibition.” Adams v. N.C. Dep’t
    of Natural & Econ. Res., 
    295 N.C. 683
    , 690, 
    249 S.E.2d 402
    , 406 (1978).
    In our determination of whether the P3 Statute violates the rule that the
    General Assembly cannot delegate its power to legislate, we are directed by Adams.
    Although this Court noted in Adams that the legislature
    may not abdicate its power to make laws [or] delegate its
    supreme legislative power to any . . . coordinate branch or
    to any agency which it may create, we also concluded that
    strict adherence to ideal notions of the non-delegation
    doctrine would unduly hamper the General Assembly in
    the exercise of its constitutionally vested powers[.]
    Conner v. N.C. Council of State, 
    365 N.C. 242
    , 250-51, 
    716 S.E.2d 836
    , 842 (2011)
    (citations and internal quotation marks omitted) (emphasis in original).
    [T]he constitutional inhibition against delegating
    legislative authority does not preclude the legislature from
    transferring adjudicative and rule-making powers to
    administrative bodies provided such transfers are
    accompanied by adequate guiding standards to govern the
    exercise of the delegated powers.
    ....
    In the search for adequate guiding standards the primary
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    sources of legislative guidance are declarations by the
    General Assembly of the legislative goals and policies
    which an agency is to apply when exercising its delegated
    powers. We have noted that such declarations need be only
    as specific as the circumstances permit. When there is an
    obvious need for expertise in the achievement of legislative
    goals the General Assembly is not required to lay down a
    detailed agenda covering every conceivable problem which
    might arise in the implementation of the legislation. It is
    enough if general policies and standards have been
    articulated which are sufficient to provide direction to an
    administrative body possessing the expertise to adapt the
    legislative goals to varying circumstances.
    Additionally, in determining whether a particular
    delegation of authority is supported by adequate guiding
    standards it is permissible to consider whether the
    authority vested in the agency is subject to procedural
    safeguards. A key purpose of the adequate guiding
    standards test is to insure that the decision-making by the
    agency is not arbitrary and unreasoned.
    
    Adams, 295 N.C. at 697-98
    , 249 S.E.2d at 410-11 (internal citations and quotation
    marks omitted).
    In the case sub judice, the P3 Statute provides as follows, in pertinent part:
    The said Department of Transportation is vested with the
    following powers:
    ....
    (39) To enter into partnership agreements with private
    entities . . . to finance, by tolls, contracts, and other
    financing methods authorized by law, the cost of acquiring,
    constructing, equipping, maintaining, and operating
    transportation infrastructure in this State, and to plan,
    design, develop, acquire, construct, equip, maintain, and
    operate transportation infrastructure in this State. An
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    agreement entered into under this subdivision requires the
    concurrence of the Board of Transportation.           The
    Department shall report to the Chairs of the Joint
    Legislative Transportation Oversight Committee, the
    Chairs of the House of Representatives Appropriations
    Subcommittee on Transportation, and the Chairs of the
    Senate Appropriations Committee on the Department of
    Transportation, at the same time it notifies the Board of
    Transportation of any proposed agreement under this
    subdivision. . . .
    ....
    (39a) a.     The Department of Transportation . . . may
    enter into up to three agreements with a private entity as
    provided under subdivision (39) of this section for which
    the provisions of this section apply.
    b.     A private entity or its contractors must
    provide performance and payment security in the form and
    in the amount determined by the Department of
    Transportation. . . .
    ....
    d.    Article 6H of Chapter 136 of the General
    Statutes shall apply to the Department of Transportation
    and to projects undertaken by the Department of
    Transportation under subdivision (39) of this section. The
    Department may assign its authority under [Article 6H of
    Chapter 136 of the General Statutes] to fix, revise, charge,
    retain, enforce, and collect tolls and fees to the private
    entity.
    e.    Any contract under this subdivision or under
    Article 6H of this Chapter for the development,
    construction, maintenance, or operation of a project shall
    provide for revenue sharing, if applicable, between the
    private party and the Department, and revenues derived
    from such project may be used as set forth in G.S. 136-
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    89.188(a), notwithstanding the provisions of G.S. 136-
    89.188(d). . . .
    ....
    f.     Agreements entered into under this subdivision
    shall comply with the following additional provisions:
    1. The Department shall solicit proposals for
    agreements.
    2. Agreement shall be limited to no more than 50
    years from the date of the beginning of
    operations on the toll facility.
    3. Notwithstanding the provisions of G.S. 136-
    89.183(a)(5), all initial tolls or fees to be charged
    by a private entity shall be reviewed by the
    Turnpike Authority Board. Prior to setting toll
    rates, either a set rate or a minimum and
    maximum rate set by the private entity, the
    private entity shall hold a public hearing on the
    toll rates, including an explanation of the toll
    setting methodology, in accordance with
    guidelines for the hearing developed by the
    Department. After tolls go into effect, the
    private entity shall report to the Turnpike
    Authority Board 30 days prior to any increase in
    toll rates or change in the toll setting
    methodology by the private entity from the
    previous toll rates or toll setting methodology
    last reported to the Turnpike Authority Board.
    ....
    6.   The Turnpike Authority annual report under
    G.S. 136-89.193 shall include reporting on all
    revenue collections associated with projects
    subject to this subdivision under the Turnpike
    Authority.
    7.   The Department shall develop standards for
    entering into comprehensive agreements with
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    private entities under the authority of this
    subdivision and report those standards to the
    Joint Legislative Transportation Oversight
    Committee on or before October 1, 2013.
    N.C. Gen. Stat. §§ 136-18(39), (39a)(a)-(b), (39a)(d)-(e), and (39a)(f) (2015).
    Guided by the principles stated in Adams, we hold that the legislative goals
    and policies set forth in the P3 Statute, combined with its procedural safeguards, are
    sufficient to withstand a constitutional challenge.
    We are mindful that “there [exists] a strong presumption that enactments of
    the General Assembly are constitutional.” Town of Spruce Pine v. Avery County, 
    346 N.C. 787
    , 792, 
    488 S.E.2d 144
    , 147 (1997).
    The General Assembly has provided that it is the policy that:
    [t]he [NCDOT] shall develop and maintain a statewide
    system of roads, highways, and other transportation
    systems commensurate with the needs of the State as a
    whole and it shall not sacrifice the general statewide
    interest to the purely local desires of any particular area.
    N.C. Gen. Stat. § 136-44.1 (2015). Article 6H of Chapter 136 of the General Statutes,
    applied to the NCDOT and to projects undertaken by the NCDOT under the P3
    Statute pursuant to N.C. Gen. Stat. § 136-18(39a)(d), states that:
    The General Assembly finds that the existing State road
    system is becoming increasingly congested and
    overburdened with traffic in many areas of the State; that
    the sharp surge of vehicle miles traveled is overwhelming
    the State’s ability to build and pay for adequate road
    improvements; and that an adequate answer to this
    challenge will require the State to be innovative and utilize
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    several new approaches to transportation improvements in
    North Carolina.
    Toll funding of highway and bridge construction is feasible
    in North Carolina and can contribute to addressing the
    critical transportation needs of the State. A toll program
    can speed the implementation of needed transportation
    improvements by funding some projects with tolls.
    N.C. Gen. Stat. § 136-89.180 (2015).
    It is clear that achievement of this stated legislative policy and the fixing,
    revising, charging, retaining, enforcing, and collecting of tolls require expertise. It
    would be impractical to require the General Assembly to provide a “detailed agenda
    covering every conceivable problem which might arise in the implementation of the
    legislation.” 
    Adams, 295 N.C. at 698
    , 249 S.E.2d at 411; see Bring v. North Carolina
    State Bar, 
    348 N.C. 655
    , 659, 
    501 S.E.2d 907
    , 910 (1998) (stating that “[i]t is not
    practical for the General Assembly to micromanage the making of rules for the Board
    [of Law Examiners] such as what law schools are to be approved. The directions given
    by the legislature are as specific as the circumstances require”). Our Supreme Court
    has previously stated that “[a]s a practical matter tolls require little legislative
    regulation. If they are unreasonably high, motorists will boycott the turnpike; if they
    are unreasonably low, the bondholders will register their objections in some
    appropriate manner.” N.C. Turnpike Authority v. Pine Island, Inc., 
    265 N.C. 109
    ,
    115, 
    143 S.E.2d 319
    , 324 (1965).
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    Here, the General Assembly has enacted specific guiding standards within the
    P3 Statute to govern the NCDOT’s exercise of the delegated powers. For example,
    the following standards, inter alia, exist to provide direction to the NCDOT for the
    Project: the NCDOT may assign its authority to fix, revise, charge, retain, enforce,
    and collect tolls and fees to the private entity under N.C. Gen. Stat. § 136-18(39a)(d);
    the private entity or its contractors must provide performance and payment security
    in the form and in the amount determined by the NCDOT under N.C. Gen. Stat. §
    136-18(39a)(b); any contract under the P3 Statute shall provide for revenue sharing,
    if applicable, between the private party and the NCDOT pursuant to N.C. Gen. Stat.
    § 136-18(39a)(e); the NCDOT must solicit proposals for agreements under N.C. Gen.
    Stat. § 136-18(39a)(f)(1); the agreement shall be limited to no more than fifty years
    under N.C. Gen. Stat. § 136-18(39a)(f)(2); and the NCDOT shall develop standards
    for entering into comprehensive agreements with private entities under the P3
    Statute and report those standards to the Joint Legislative Transportation Oversight
    Committee pursuant to N.C. Gen. Stat. § 136-18(39a)(f)(7).            Considering the
    preceding guidelines, we hold that the directions given by the General Assembly are
    as specific as the circumstances require.
    Furthermore, we hold that there are adequate procedural safeguards in the P3
    Statute to ensure adherence to the legislative standards. N.C. Gen. Stat. § 136-
    18(39a)(f)(3) provides that all initial tolls or fees to be charged by a private entity
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    shall be reviewed by the Turnpike Authority Board. Prior to setting toll rates, the
    private entity must hold a public hearing on the toll rates, including an explanation
    of the toll setting methodology, in accordance with hearing guidelines developed by
    the NCDOT. N.C. Gen. Stat. § 136-18(39a)(f)(3). After the tolls go into effect, Mobility
    must report to the Turnpike Authority Board thirty days prior to any increase in toll
    rates or change in the toll setting methodology from the previous toll rates or toll
    setting methodology last reported to the Turnpike Authority Board. 
    Id. N.C. Gen.
    Stat. § 136-18(39a)(f)(5) also states that sixty days prior to the signing of a concession
    agreement subject to the P3 Statute, the NCDOT must report to the Joint Legislative
    Oversight Committee, providing such things as a description of the project, number
    of years the tolls will be in place, and demonstrated ability of the project team to
    deliver the project. N.C. Gen. Stat. § 136-18(39a)(f)(5). These procedural safeguards,
    inter alia, ensure that the NCDOT carries out the Project consistent with the policies
    of the General Assembly.
    Based on the foregoing, we conclude that there are adequate guiding standards
    and procedural safeguards in place to regulate the exercise of authority for this
    Project. Accordingly, we hold that the trial court did not err by concluding that the
    General Assembly’s delegation of power to the NCDOT constituted a constitutional
    delegation of power.
    B.        Public Purpose
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    Plaintiff’s second argument on appeal is that the trial court erred by concluding
    that the Project’s expenditures constituted a public purpose pursuant to Article V,
    Section 2(1) of the North Carolina Constitution. Plaintiff relies on the holding in
    Foster v. North Carolina Medical Care Commission, 
    283 N.C. 110
    , 
    195 S.E.2d 517
    (1973), for his contentions.
    Article V, Section 2(1) of the North Carolina Constitution provides that “[t]he
    power of taxation shall be exercised in a just and equitable manner, for public
    purposes only, and shall never be surrendered, suspended, or contracted away.
    Although the constitutional language speaks of the ‘power of taxation,’ the limitation
    has not been confined to government use of tax revenues.” Madison Cablevision, Inc.
    v. City of Morganton, 
    325 N.C. 634
    , 643, 
    386 S.E.2d 200
    , 205 (1989).
    “The initial responsibility for determining what is and what is not a public
    purpose rests with the legislature; its determinations are entitled to great weight.”
    
    Id. at 644-45,
    386 S.E.2d at 206.      “[T]he presumption favors constitutionality.
    Reasonable doubt must be resolved in favor of the validity of the act.” Maready v.
    City of Winston-Salem, 
    342 N.C. 708
    , 714, 
    467 S.E.2d 615
    , 619 (1996) (citations
    omitted).
    The General Assembly’s adoption of the P3 Statute leaves no doubt that our
    legislature has determined that the NCDOT’s partnership agreements with private
    entities to finance the cost of acquiring, constructing, equipping, maintaining, and
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    operating transportation infrastructure in this State is a public purpose within the
    meaning of Article V, Section 2(1) of the North Carolina Constitution. However, “[i]t
    is the duty and prerogative of this Court to make the ultimate determination of
    whether the activity or enterprise is for a purpose forbidden by the Constitution of
    the state.” Madison 
    Cablevision, 325 N.C. at 645
    , 386 S.E.2d at 206.
    Our Supreme Court has stated that:
    [a] slide-rule definition to determine public purpose for all
    time cannot be formulated; the concept expands with the
    population, economy, scientific knowledge, and changing
    conditions. As people are brought closer together in
    congested areas, the public welfare requires governmental
    operation of facilities which were once considered
    exclusively private enterprises and necessitates the
    expenditure of tax funds for purposes which, in an earlier
    day, were not classified as public. Often public and private
    interests are so co-mingled that it is difficult to determine
    which predominates. It is clear, however, that for a use to
    be public its benefits must be in common and not for
    particular persons, interests, or estates; the ultimate net
    gain or advantage must be the public’s as
    contradistinguished from that of an individual or private
    entity.
    Martin v. North Carolina Housing Corp., 
    277 N.C. 29
    , 43, 
    175 S.E.2d 665
    , 672-73
    (1970) (internal citations and quotation marks omitted). Our Courts
    ha[ve] not specifically defined public purpose but rather
    ha[ve] expressly declined to confine public purpose by
    judicial definition[, leaving] each case to be determined by
    its own peculiar circumstances as from time to time it
    arises. Two guiding principles have been established for
    determining [whether a government expenditure] is for a
    public purpose: (1) it involves a reasonable connection with
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    the convenience and necessity of the particular
    municipality, and (2) the activity benefits the public
    generally, as opposed to special interests or persons[.]
    Madison 
    Cablevision, 325 N.C. at 646
    , 386 S.E.2d at 207 (internal citations and
    quotation marks omitted). We apply these foregoing principles to the present case.
    As to the first prong of this test, “whether an activity is within the appropriate
    scope of governmental involvement and is reasonably related to communal needs may
    be evaluated by determining how similar the activity is to others which this Court
    has held to be within the permissible realm of governmental action.” 
    Maready, 342 N.C. at 722
    , 467 S.E.2d at 624.
    Numerous cases demonstrate the spectrum of facilities and activities which
    have been deemed to constitute a public purpose.          Aid to railroad:     Wood v.
    Commissioners of Oxford, 
    97 N.C. 227
    , 
    2 S.E. 653
    (1887); Airport facilities:
    Greensboro-High Point Airport Auth. v. Johnson, 
    226 N.C. 1
    , 
    36 S.E.2d 803
    (1946);
    Port Terminal Facilities: Webb v. Port Comm’n of Morehead City, 
    205 N.C. 663
    , 
    172 S.E. 377
    (1934); Railway Terminal Facilities: Hudson v. City of Greensboro, 
    185 N.C. 502
    , 
    117 S.E. 629
    (1923); Air Cargo Facilities: Piedmont Triad Airport Auth. v.
    Urbine, 
    354 N.C. 336
    , 
    554 S.E.2d 331
    (2001). These cases establish that providing
    public transportation infrastructure has long been held to be within the permissible
    scope of governmental action.
    As to the second prong of the Madison Cablevision test,
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    activities are considered constitutional so long as they
    primarily benefit the public and not a private party: It is
    not necessary, in order that a use may be regarded as
    public, that it should be for the use and benefit of every
    citizen in the community. Moreover, an expenditure does
    not lose its public purpose merely because it involves a
    private actor. Generally, if an act will promote the welfare
    of a state or a local government and its citizens, it is for a
    public purpose.
    Peacock v. Shinn, 
    139 N.C. App. 487
    , 493-94, 
    533 S.E.2d 842
    , 847 (2000) (internal
    citations and quotation marks omitted) (emphasis in original).
    Keeping these principals in mind, the expenditure in the present case clearly
    serves a public purpose. The General Assembly recognized that the State’s road
    system was becoming increasingly congested and overburdened with traffic. The
    legislature sought to alleviate the transportation needs of the State by authorizing
    the NCDOT to enter into agreements with private entities to finance transportation
    infrastructure in this State pursuant to the P3 Statute. The expenditure the P3
    Statute authorizes should “provide immediate travel time reliability along I-77 from
    Uptown Charlotte to the Lake Norman area[,]” a stated purpose of the Project.
    Although Mobility will finance, construct, operate, and maintain the Project, gaining
    incidental private benefit, the government expenditure primarily benefits the public.
    Mobility’s involvement as a private actor and the possibility that not every citizen in
    the community may use the Project’s toll lanes do not negate the public purpose of
    the expenditure.
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    Plaintiff cites to the holding in Foster and argues that the facts before us are
    “more constitutionally troubling[.]”   In Foster, the North Carolina Medical Care
    Commission Hospital Facilities Act, enacted in 1971 and found in N.C. Gen. Stat. §§
    131-138 to 131-162, was challenged. 
    Foster, 283 N.C. at 113-14
    , 195 S.E.2d at 520.
    The act in question vested in the North Carolina Medical Care Commission the
    authority to effectuate a plan to issue revenue bonds to finance construction of public
    and private hospital facilities. 
    Id. at 115-16,
    195 S.E.2d at 521-22. The Foster Court
    noted that while it was “well settled that the expenditure of tax funds for the
    construction of a hospital, to be owned and operated by the State, a county, a city,
    town or other political subdivision of the State, is an expenditure for a public
    purpose[,]” it also recognized that “[i]t does not necessarily follow . . . that the
    construction and operation of the privately owned hospital is for a public purpose,
    within the meaning of the constitutional limitation upon the use of tax funds.” 
    Id. at 125,
    195 S.E.2d at 527. The Court reasoned that “[w]hile the Act now before us
    provides for ownership of the acquired property by a public agency until the bonds
    issued to finance the contemplated construction are retired, the Act has no purpose
    separate and apart from the operation by and ultimate conveyance of the hospital
    facility to the lessee thereof.” 
    Id. at 127,
    195 S.E.2d at 528. Accordingly, the Court
    held that “the expenditure of public funds raised by taxation to finance, or facilitate
    the financing of, the construction of a hospital facility to be privately operated,
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    managed and controlled is not an expenditure for a public purpose” and was
    prohibited by Article V, Section 2(1) of the North Carolina Constitution. 
    Id. at 127,
    195 S.E.2d at 528-29.
    We find Foster distinguishable. In Foster, the North Carolina Supreme Court
    held that there was no purpose separate from the operation by and ultimate
    conveyance of the hospital facility to the lessee. Once the bonds were paid, the North
    Carolina Medical Care Commission was to convey title to such facility to the lessee,
    a private entity. Here, the Project is to provide travel time reliability and Mobility’s
    private benefit is incidental to the public purpose.          Under Article 2 of the
    Comprehensive Agreement, all of the infrastructure constructed by Mobility will be
    owned by the State. Mobility has “no fee title, leasehold estate, possessory interest,
    permit, easement or other real property interest of any kind in or to the Project or the
    Project Right of Way” and Mobility’s property interests are “limited to contract rights
    constituting intangible personal property (and not real estate interests).”
    Furthermore, the Comprehensive Agreement limits Mobility’s role in the Project to
    fifty years.
    For the reasons stated above, we hold that the trial court did not err by
    concluding that the Project’s expenditures constituted a public purpose pursuant to
    Article V, Section 2(1) of the North Carolina Constitution.
    C.      Turnpike Statute
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    Plaintiff’s third argument on appeal is that the trial court erred by failing to
    conclude that the Comprehensive Agreement violated the Turnpike Statute.
    First, plaintiff contends that Mobility’s design plan for the Project violates N.C.
    Gen. Stat. § 136-89.199 by reducing the number of existing non-toll general purpose
    lanes from four to three.
    N.C. Gen. Stat. § 136-89.199 provides as follows:
    Notwithstanding any other provision of this Article, the
    Authority may designate one or more lanes of any highway,
    or portion thereof, within the State, including lanes that
    may previously have been designated as HOV lanes under
    G.S. 20-146.2, as high-occupancy toll (HOT) or other type
    of managed lanes; provided, however, that such
    designation shall not reduce the number of existing non-toll
    general purpose lanes. In making such designations, the
    Authority shall specify the high-occupancy requirement or
    other conditions for use of such lanes, which may include
    restricting vehicle types, access controls, or the payment of
    tolls for vehicles that do not meet the high-occupancy
    requirements or conditions for use.
    N.C. Gen. Stat. § 136-89.199 (2015) (emphasis added).
    A review of the Comprehensive Agreement establishes that plaintiff’s
    argument fails. The Comprehensive Agreement explicitly states that the Project will
    not reduce the number of existing non-toll general purpose lanes.
    Developer shall design and construct the Project to provide
    at a minimum the same number of Existing General
    Purpose Lanes within the Existing ROW as of the Proposal
    Due Date. Developer shall not eliminate, reduce the width
    of or otherwise permanently restrict access to existing
    ramps and loops.
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    Next, plaintiff argues that the Comprehensive Agreement violates N.C. Gen.
    Stat. § 136-89.183(5) and is therefore void for illegality. Plaintiff contends that while
    N.C. Gen. Stat. § 136-89.183(5) requires review by the Board of Transportation, Joint
    Legislative Transportation Oversight Committee, and Joint Legislative Commission
    on Governmental Operations thirty days prior to the effective date of any toll or fee,
    the Comprehensive Agreement fails to require the same. Plaintiff’s argument is
    misplaced.
    N.C. Gen. Stat. § 136-89.183(a)(5) gives the Turnpike Authority power “[t]o fix,
    revise, charge, retain, enforce, and collect tolls and fees for the use of Turnpike
    Projects” and requires that “[t]hirty days prior to the effective date of any toll or fee
    . . . the Authority shall submit a description of the proposed toll or fee to the Board of
    Transportation, the Joint Legislative Transportation Oversight Committee and the
    Joint Legislative Commission on Governmental Operations for review.” However,
    N.C. Gen. Stat. § 136-89.183(a)(5) is not applicable to this case. The P3 Statute
    unambiguously states that:
    Notwithstanding the provisions of G.S. 136-89.183(a)(5), all
    initial tolls or fees to be charged by a private entity shall
    be reviewed by the Turnpike Authority Board. Prior to
    setting toll rates, either a set rate or a minimum and
    maximum rate set by the private entity, the private entity
    shall hold a public hearing on the toll rates, including an
    explanation of the toll setting methodology, in accordance
    with guidelines for the hearing developed by the
    Department.
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    N.C. Gen. Stat. § 136-18(39a)(f)(3) (emphasis added). Thus, while N.C. Gen. Stat. §
    136-89.183(a)(5) may apply to some tolls of the North Carolina Turnpike Authority,
    it does not apply to the Project at issue in this case.
    Accordingly, we reject plaintiff’s argument that the trial court erred by failing
    to conclude that the Comprehensive Agreement violated the Turnpike Statute.
    D.       Authority to Tax
    In its last argument on appeal, plaintiff asserts that the trial court erred by
    failing to conclude that the General Assembly unconstitutionally delegated its
    authority to tax to the NCDOT, in violation of Article I, Section 8 and Article II,
    Section 23 of the North Carolina Constitution and the Due Process Clause of the
    United States Constitution.      Specifically, plaintiff argues that while the North
    Carolina Constitution “forbids the delegation by the General Assembly to a non-
    elected body the power to impose or forgive taxes[,]” the legislature has granted unto
    Mobility the authority to impose and collect taxes. Furthermore, plaintiff contends
    that it was “denied due process in the manner in which these tax liabilities were
    imposed upon it[.]”
    Plaintiff’s entire argument is premised on an issue that has already been
    decided by our Supreme Court. In North Carolina Turnpike Authority, the Supreme
    Court stated that:
    Tolls are not taxes. A person uses a toll road at his option;
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    WIDENI77 V. NC DEP’T OF TRANSP.
    Opinion of the Court
    if he does not use it, he pays no toll. Taxes are levied for
    the support of government, and their amount is regulated
    by its necessities. Tolls are the compensation for the use of
    another’s property or improvements made, and their
    amount is determined by the cost of the property or
    improvements.
    North Carolina Turnpike 
    Authority, 265 N.C. at 116-17
    , 143 S.E.2d at 325 (citations
    and quotation marks omitted). Because tolls do not constitute a tax within the
    meaning of the Constitution, the limitations of Article I, Section 8 and Article II,
    Section 23 of the North Carolina Constitution do not apply and plaintiff’s due process
    argument is similarly without merit.
    IV.    Conclusion
    For the reasons stated above, we affirm the order of the trial court, granting
    summary judgment in favor of defendants.
    AFFIRMED.
    Judges McCULLOUGH and INMAN concur.
    Judge Douglas McCullough concurred in this opinion prior to 24 April 2017.
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