By Dave Vieser. When West Catawba Avenue in Cornelius was congested to the point of road rage on a recent Saturday morning, town officials were quick to note that the newly paved turn lane was required before a new Dunkin Donuts could open. The developer paid for the construction, not the town.

These projects are commonly part of the “conditions of acceptance” which municipalities require before approving a project. Many of the conditions are meant to fortify the infrastructure surrounding the impacted area.

As development continues at a furious pace within the Golden Crescent, some residents have pondered the possibility of tying new developments to major infrastructure improvements, such as building new schools and roads.

It seems logical that new projects should help fund wide-scale improvements as growth places new demands on existing infrastructure. Problem is, this concept, often included in documents known as adequate public facilities ordinances (APFO), has already been tried in many states, including North Carolina, and the courts have, one by one, ruled some of them illegal.

By themselves, APFOs, also known as impact fees, have a noble goal: To insure that the schools, roads, and such other “public facilities” as water and sewer will remain adequate for the existing community after a development is built. And indeed, having the developer pay for elements such as a turning lane are common. But forcing the developer to pay for brand new schools or entirely new roads? That’s another ballgame.

For example, in December 2012 the North Carolina Supreme Court invalidated the APFO for public schools in Cabarrus County. Under the ordinance, the county had allowed developers to avoid the consequences of inadequate school capacity by paying voluntary mitigation fees to defray the costs of constructing or expanding school facilities. It was the payment of the fees which tripped up the county.

“This case has important lessons for towns and counties wrestling with issues of growth and public facility capacity,” said Professor David W. Owens from the UNC School of Government. “The key issue in this case dealt with financing the costs of adding school capacity, but the same issue must be addressed for the full range of public facilities needed to serve new development.”

The bottom line, Owen said, is that the authority to regulate development does not include the authority to add financing methods unless and until the state legislature specifically says it does.

Meanwhile, Facebook pages like Exit 28 Ridiculousness give some indication of how restive many citizens are over not just clogged roads and highways, but efforts to improve them with tolls.

So where does this leave municipalities such as Cornelius? “We can ask for certain types of improvements, such as turning lanes, to be included as part of their conditional zoning” said Cornelius Planning Director Wayne Herron. “However, the developer has to agree to any condition for it to be valid.”

Herron said the town has been “very fortunate” that many of the improvements requested, at developers expense, have been agreed to and constructed over the years. However, that doesn’t address the big-ticket infrastructure expenses such as new schools and highways.

Other rapidly growing areas around the country are still attempting to establish APFOs with mixed results. In the South Carolina suburbs of Charlotte, several municipalities are moving ahead, with Fort Mill ready to impose the fees starting October 1. York and Lancaster counties are also discussing ways of imposing impact fees.

In Queen Anne’s County, near Baltimore, voters recently rejected an ordinance which would have required a determination of school adequacy for residential developments of 20 or more new lots.  Over 60 percent of the voters felt, apparently, that adopting such a rule would put too much of a damper on growth and development.

Besides Maryland and North Carolina, APFOs have been adopted in several other states, including New York, California, Washington and Florida. However the courts continue to strike down many of their provisions, especially those which require payments to municipalities. The result: While they look good on paper, many of the current APFO’s in North Carolina are severely limited as an infrastructure funding tool of the future.