Homebuilders Ass'n of Charlotte, Inc. v. City of Charlotte , 109 N.C. App. 327 ( 1993 )

EAGLES, Judge.

Plaintiff argues that the trial court erred by granting declaratory judgment in favor of the City of Charlotte. We agree and reverse.

I.

Initially, we note that both parties stipulated that the trial court had jurisdiction over this matter. A municipality may have its rights and obligations determined in a declaratory judgment action. Board of Managers v. Wilmington, 237 N.C. 179, 74 S.E.2d 749 (1953).

II.

Plaintiff argues that the trial court erred “because the City did not have the authority to impose ‘user fees’ for mandated regulatory services.” We agree.

“A municipality has only such powers as the legislature confers upon it.” Koontz v. City of Winston-Salem, 280 N.C. 513, 520, 186 S.E.2d 897, 902 (1972) (citing Moody v. Transylvania County, 271 N.C. 384, 156 S.E.2d 716 (1967); Shaw v. Asheville, 269 N.C. 90, 152 S.E.2d 139 (1967)). Our Supreme Court has stated:

The legislature has specifically provided that the powers granted to municipalities in chapter 160A “shall be broadly construed and grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect.” N.C.G.S. § 160A-4 (1987). See Grace Baptist Church v. City of Oxford, 320 N.C. 439, 443, 358 S.E.2d 372, 374 (1987); Smith v. Keator, 285 N.C. 530, 534, 206 S.E.2d 203, 205-06, appeal dismissed, 419 U.S. 1043, 42 L. Ed. 2d 636 (1974); Town of West Jefferson v. Edwards, 74 N.C. App. 377, 385, 329 S.E.2d 407, 412-13 (1985); City of Durham v. Herndon, 61 N.C. App. 275, 278, 300 S.E.2d 460, 462 (1983). Thus, the subject of inquiry is the scope of the enabling legislation on which [the City] relies in enacting its ordinance.

River Birch Associates v. City of Raleigh, 326 N.C. 100, 107-08, 388 S.E.2d 538, 542 (1990). Hence, our inquiry commences with an examination of the enabling legislation upon which the City of Charlotte relies in its attempt to enforce § 2-4 of its Code.

In its brief, the City concedes that “no statute expressly provides that cities and towns are authorized to charge the cost of a regulatory service to those who use that service.” Simply stated, there is no enabling legislation that expressly authorizes municipalities to charge the user fees that are contained in § 2-4 of the Code of the City of Charlotte. Nevertheless, the City argues that “the authority for such ordinances and, in particular, for Section 2-4 of the Code of the City of Charlotte can be fairly and necessarily implied from the regulatory powers expressly granted in the statutes. The ordinance adopted by the City Council is a permissible means through which the City can carry out its duties to regulate the development of land within city limits.” We disagree.

The City of Charlotte contends that it has the implied power to impose the user fees found in § 2-4 of its Code by virtue of its general police powers. However, “[a] city or town in this State has no inherent police power. It may exercise only such powers as are expressly conferred upon it by the General Assembly or as are necessarily implied from those expressly so conferred.” Town of Conover v. Jolly, 277 N.C. 439, 443, 177 S.E.2d 879, 881 (1970) (citations omitted). Statutory delegations of power to municipalities are to be strictly construed, resolving any ambiguity against the municipal corporation’s authority to exercise the power in question. Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 554, 276 S.E.2d 443, 445 (1981); In re Incorporation of Indian Hills, 280 N.C. 659, 662, 186 S.E.2d 909, 910 (1972) (“Any fair, reasonable doubt concerning the existence of [a municipal corporation’s] power is resolved by the courts against the corporation, and the power is denied.”).

In support of its contention, the City argues that G.S. 160A-175(a) grants to local governments the authority to “impose fines and penalties for violations of its ordinances.” However, we conclude that the implementation of user fees goes beyond the permissible bounds of the authority granted in G.S. 160A-175(a). This statute clearly reflects the desire of the General Assembly to grant to municipalities a mechanism, the power to impose fines and penalties, to enforce its ordinances by penalizing those who violate them. G.S. 160A-175(a) does not apply here. The City itself argues that “[a] reasonable means of providing a regulatory program is to require the person being regulated to meet some of the costs occasioned by his actions.” Here, the City is attempting to impose a fee for the mere use of its services, most of which are required and are provided exclusively by the City. The City is not attempting to impose user fees to enforce an ordinance because the ordinance has been violated. The user fees proposed would be assessed against every user of services without regard for whether any ordinance had been violated. Accordingly, we conclude that the General Assembly did not authorize the City of Charlotte to impose user fees by its enactment of G.S. 160A-175(a).

The City further argues that

North Carolina municipalities have express authority to regulate matters which concern the development of land and use of streets within their corporate limits. N.C. Gen. Stat. §§ 160A-296 [“Establishment and control of streets; center and edge lines”], -299 [“Procedure for permanently closing streets and alleys”], -371 [“Subdivision regulation”], -381 [“Grant of power” for zoning], -458 [“Erosion and sedimentation control”] .... The primary purpose of the statutes (N.C. Gen. Stat. §§ 160A-296, -299, -371, -381, -458) is to provide for regulation of urban development and to control use of city streets.

The City argues that it has the implied power to charge user fees by virtue of the General Assembly’s enactment of G.S. 160A-296, G.S. 160A-299, G.S. 160A-371, G.S. 160A-381, and G.S. 160A-458. We disagree.

Even under the broad construction mandated by G.S. 160A-4, we conclude that authority for a municipality to charge user fees of this type cannot be implied as “reasonably necessary or expedient” to the regulatory powers delegated by these statutes. We note that the City contends that the fees are designed to help meet the costs of the regulation of development. G.S. 160A-209(c) provides that:

(c) Each city may levy property taxes for one or more of the following purposes subject to the rate limitation set out in subsection (d).

(25) Planning — To provide for a program of planning and regulation of development in accordance with Article 19 of this Chapter.

(Emphasis added.) See e.g., G.S. 160A-209(c)(30) (streets); G.S. 160A-209(c)(10c) (drainage); G.S. 160A-209(c)(31a) (urban redevelopment). G.S. 160A-363 (entitled “Supplemental powers”) of Article 19 (entitled “Planning and Regulation of Development”) of Chapter 160A provides “Any city council is authorized to make any appropriations that may be necessary to carry out any activities or contracts authorized by this Article . . . and to levy taxes for these purposes as a necessary expense." (Emphasis added.) To meet the costs of regulating development, the General Assembly has expressly authorized cities the power to “levy taxes”; a power which is, in turn, pursuant to G.S. 160A-209(c) subject to the “rate limitations” set forth in G.S. 160A-209(d). Conversely, G.S. 160A-363 does not grant cities any authority to impose the user fees in issue here. To allow the City unilaterally to impose its own user fees subject to no limitations would clearly circumvent the intent of the General Assembly.

Given that the City’s own policy “is to charge and impose regulatory fees for certain services which directly benefit the individual or group who demand or create the need for the service,” the City argues that “[t]he issue of whether developer-related regulatory services should be subsidized by all citizens through property taxes or by the persons who necessitate the regulation is a policy question.” We find that this argument is without merit in the absence of enabling legislation for user fees from the General Assembly.

Finally, we conclude that the City’s contentions regarding its right to impose user fees draw no support from the perspective of legislative history. We note, for example, that the General Assembly has expressly authorized sewer districts to charge “user fees” for furnished services. G.S. 162A-88; see McNeill v. Harnett County, 327 N.C. 552, 569, 398 S.E.2d 475, 485 (1990). See also G.S. 159G-6(b)(2); G.S. 159G-18(a). Yet the General Assembly has not enacted a comparable statute expressly authorizing the type of user fees proposed by the City which encompass virtually any regulatory stage in the development process. While the General Assembly may have the power to authorize municipalities to impose user fees should it choose to do so in the future, we conclude that municipalities may not unilaterally impose these fees absent a grant of authority from the General Assembly. Currently, there is no legislative authority for municipalities to impose user fees as proposed by the ordinance in issue here.

III.

Plaintiff argues that the trial court erred by granting a declaratory judgment for the City of Charlotte “in that the ‘user fees’ imposed are an unreasonable exaction and are therefore unenforceable.” Given our holding that these user fees are invalid absent enabling legislation from the General Assembly, we need not address this issue.

IV.

In sum, if user fees are to be permitted in North Carolina, the authority for municipalities to impose these fees must be granted by our General Assembly. There being no such authority here, user fees shall not be collected under the authority of § 2-4 of the Code of the City of Charlotte from and after the certification date of this opinion. Accordingly, the trial court’s declaratory judgment in favor of the City of Charlotte is reversed and the cause is remanded for entry of declaratory judgment in favor of plaintiff.

Reversed and remanded.

Judges WELLS and LEWIS concur.