Public Education, Local Authority, and Democracy: The Implied Power of North Carolina Counties to Impose School Impact Fees

This Article examines the authority of counties in North Carolina to impose fees such as those attempted in Durham and Union Counties and concludes, contrary to the decisions of the court of appeals, that counties do have the implied authority under existing law to impose such fees for the purpose of generating school construction revenue. This conclusion is reached not by a mechanistic application of rules of law, but with an application of the law that keeps in mind the aim of the North Carolina Constitution, the state's form of government, and the laws that distribute power to local governments. Simply put, this Article argues that an examination of the questions raised in Durham Land Owners and Union Land Owners necessarily requires a normative examination and choice, not a merely technical one, regarding how our laws shall be interpreted and what they shall be determined to mean, a task that the court of appeals failed to undertake when it struck down Durham and Union Counties' school impact fees. The normative principle this Article employs as its guide is, in a word, democracy.

To that end, this Article asks how Durham and Union Counties' school impact fees fare when examined in the context of seeking to achieve popular self-government and democratic accountability. This Article concludes these aims are generally best served when local officials who govern as a result of popular consent are given significant latitude to tackle local issues. This Article, in short, argues that the school impact fees adopted by Durham and Union Counties were authorized under existing law and that this conclusion is strengthened when the scope of local government authority is examined under the criterion of achieving democracy.