{ "id": 4178206, "name": "AMWARD HOMES, INC., ANGE CONSTRUCTION COMPANY, BLUEPOINT HOMES, INC., HOMESCAPE BUILDING COMPANY, IMPACT DESIGN-BUILD, INC., JOHN LEGGETT AND COMPANY, POYTHRESS CONSTRUCTION COMPANY, INC., POYTHRESS HOMES, INC., WARDSON CONSTRUCTION, INC., WHG, INC. d/b/a TIMBERLINE BUILDERS, AND ZEIGLER & COMPANY, Plaintiffs v. TOWN OF CARY, a body politic and corporate, Defendant; TRADITION AT STONEWATER I, LP, Plaintiff-Intervenor v. TOWN OF CARY, a body politic and corporate, Defendant to claim of Plaintiff-Intervenor", "name_abbreviation": "Amward Homes, Inc. v. Town of Cary", "decision_date": "2010-08-03", "docket_number": "No. COA09-923", "first_page": "38", "last_page": "67", "citations": [ { "type": "official", "cite": "206 N.C. App. 38" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": -1 }, { "cite": "620 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634254 ], "year": 2005, "pin_cites": [ { "page": "880-81", "parenthetical": "quoting Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002)" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0873-01" ] }, { "cite": "638 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637343 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/638/0197-01" ] }, { "cite": "617 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633721 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/617/0061-01" ] }, { "cite": "660 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640940 ], "year": 2008, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0626-01" ] }, { "cite": "667 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642008 ], "year": 2008, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/se2d/667/0239-01" ] }, { "cite": "628 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635613 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/628/0768-01" ] }, { "cite": "626 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635180, 12635181 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/626/0649-01", "/se2d/626/0649-02" ] }, { "cite": "360 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798368, 3793536, 3790594, 3793379, 3793907, 3796086, 3788826, 3791163 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0177-01", "/nc/360/0177-03", "/nc/360/0177-04", "/nc/360/0177-02", "/nc/360/0177-05", "/nc/360/0177-08", "/nc/360/0177-06", "/nc/360/0177-07" ] }, { "cite": "617 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633754 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "718" }, { "page": "717", "parenthetical": "citation and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0715-01" ] }, { "cite": "180 U.S. 452", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3617697 ], "weight": 3, "pin_cites": [ { "page": "468" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/180/0452-01" ] }, { "cite": "274 U.S. 490", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 81084 ], "weight": 4, "year": 1927, "pin_cites": [ { "page": "496-97" }, { "page": "1169" } ], "opinion_index": 0, "case_paths": [ "/us/274/0490-01" ] }, { "cite": "344 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "324" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523927 ], "year": 1986, "pin_cites": [ { "page": "489-90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0486-01" ] }, { "cite": "293 F.3d 726", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9417317 ], "year": 2002, "pin_cites": [ { "page": "730-31" } ], "opinion_index": 0, "case_paths": [ "/f3d/293/0726-01" ] }, { "cite": "174 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351783 ], "year": 2005, "pin_cites": [ { "page": "274", "parenthetical": "quoting Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0266-01" ] }, { "cite": "545 U.S. 748", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8209863 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "766" }, { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/us/545/0748-01" ] }, { "cite": "541 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "480", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440617 ], "year": 2000, "pin_cites": [ { "page": "186", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0177-01" ] }, { "cite": "211 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "323" } ], "opinion_index": 0 }, { "cite": "286 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566789 ], "year": 1975, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0366-01" ] }, { "cite": "508 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "282", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "349 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571662 ], "year": 1998, "pin_cites": [ { "page": "491", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0483-01" ] }, { "cite": "484 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "814", "parenthetical": "citation omitted" }, { "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 117", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708933 ], "year": 1997, "pin_cites": [ { "page": "127", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0117-01" ] }, { "cite": "574 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "84" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250748 ], "year": 2002, "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0462-01" ] }, { "cite": "323 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1984, "pin_cites": [ { "page": "429" }, { "page": "428" }, { "page": "429" }, { "page": "429" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 771", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526415 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/71/0771-01" ] }, { "cite": "90 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1956, "pin_cites": [ { "page": "884" }, { "page": "884-85", "parenthetical": "citation omitted" }, { "page": "885-86", "parenthetical": "\"[T]he Sisters took title to the property with full knowledge, and are estopped to challenge the validity of the ordinance under which they are permitted to conduct a private school.\"" }, { "page": "885-86" } ], "opinion_index": 0 }, { "cite": "243 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624665 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "324" }, { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0316-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-46", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "517 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "395", "parenthetical": "three-year statute of limitations applies to state constitutional claims involving personal injury" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11144139 ], "year": 1999, "pin_cites": [ { "page": "297", "parenthetical": "three-year statute of limitations applies to state constitutional claims involving personal injury" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0294-01" ] }, { "cite": "394 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "state and federal constitutional claims barred by former nine-month statute of limitations applying to zoning ordinance challenges" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526317 ], "year": 1990, "pin_cites": [ { "parenthetical": "state and federal constitutional claims barred by former nine-month statute of limitations applying to zoning ordinance challenges" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0077-01" ] }, { "cite": "304 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710350 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0603-01" ] }, { "cite": "132 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "parenthetical": "takings claim against North Carolina Department of Transportation barred by statute of limitations" } ], "opinion_index": 0 }, { "cite": "260 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574095 ], "year": 1963, "pin_cites": [ { "parenthetical": "takings claim against North Carolina Department of Transportation barred by statute of limitations" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0241-01" ] }, { "cite": "401 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543405 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0323-01" ] }, { "cite": "394 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "state constitutional challenge to zoning ordinance held barred by statute of limitations contained in N.C.G.S. \u00a7 1-54.1" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524627 ], "year": 1990, "pin_cites": [ { "parenthetical": "state constitutional challenge to zoning ordinance held barred by statute of limitations contained in N.C.G.S. \u00a7 1-54.1" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0676-01" ] }, { "cite": "678 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "354", "parenthetical": "\" '[I]n the absence of an adequate state remedy, one whose state constitutional rights have been abridged has a direct claim against the State under our Constitution.' \"" } ], "opinion_index": 0 }, { "cite": "363 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151090 ], "year": 2009, "pin_cites": [ { "page": "338", "parenthetical": "\" '[I]n the absence of an adequate state remedy, one whose state constitutional rights have been abridged has a direct claim against the State under our Constitution.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0334-01" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "290" }, { "page": "289" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "783" }, { "page": "782" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "538 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "620", "parenthetical": "\"As we have reversed the trial court's grant of summary judgment on plaintiff's state tort law claims against Acker, there is an adequate state remedy for plaintiff's alleged injury resulting from Acker's conduct.\"" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133018 ], "year": 2000, "pin_cites": [ { "page": "632", "parenthetical": "\"As we have reversed the trial court's grant of summary judgment on plaintiff's state tort law claims against Acker, there is an adequate state remedy for plaintiff's alleged injury resulting from Acker's conduct.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0606-01" ] }, { "cite": "449 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "247", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525419 ], "year": 1994, "pin_cites": [ { "page": "675", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0663-01" ] }, { "cite": "89 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "295" } ], "opinion_index": 0 }, { "cite": "242 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620922 ], "year": 1955, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0612-01" ] }, { "cite": "900 F.2d 255", "category": "reporters:federal", "reporter": "F.2d", "year": 1990, "opinion_index": 0 }, { "cite": "703 F. Supp. 1192", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4061676 ], "year": 1988, "pin_cites": [ { "page": "1195" } ], "opinion_index": 0, "case_paths": [ "/f-supp/703/1192-01" ] }, { "cite": "690 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "542" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176255 ], "year": 2010, "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0088-01" ] }, { "cite": "361 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736123 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/361/0137-01" ] }, { "cite": "172 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320486 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/172/0475-01" ] }, { "cite": "267 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "599", "parenthetical": "\"The right of action to recover the penalty for usury paid accrues upon each payment of usurious interest giving rise to a separate cause of action to recover the penalty therefor, which action is barred by the statute of limitations at the expiration of two years from such payment.\"" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551442 ], "year": 1980, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0646-01" ] }, { "cite": "483 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "429", "parenthetical": "\"We believe that the reductions in payments under the new systems were deficiencies which have continued to the present time.\"" } ], "opinion_index": 0 }, { "cite": "345 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53926 ], "year": 1997, "pin_cites": [ { "page": "695", "parenthetical": "\"We believe that the reductions in payments under the new systems were deficiencies which have continued to the present time.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0683-01" ] }, { "cite": "490 U.S. 536", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605648 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "539", "parenthetical": "footnote omitted" }, { "page": "588-89", "parenthetical": "footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/us/490/0536-01" ] }, { "cite": "442 F.2d 908", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 769514 ], "year": 1971, "pin_cites": [ { "page": "912" } ], "opinion_index": 0, "case_paths": [ "/f2d/442/0908-01" ] }, { "cite": "650 F.2d 1144", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1240293 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "1147" }, { "page": "1147" } ], "opinion_index": 0, "case_paths": [ "/f2d/650/1144-01" ] }, { "cite": "581 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "423" } ], "opinion_index": 0 }, { "cite": "357 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491505 ], "year": 2003, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0170-01" ] }, { "cite": "676 S.E.2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "190 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158054 ], "year": 2008, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0463-01" ] }, { "cite": "947 F.2d 1158", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525307 ], "year": 1991, "pin_cites": [ { "page": "1162" } ], "opinion_index": 0, "case_paths": [ "/f2d/947/1158-01" ] }, { "cite": "690 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 802", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "682 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "745" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4171660 ], "year": 2009, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0066-01" ] }, { "cite": "436 S.E.2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531975 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0158-01" ] }, { "cite": "471 U.S. 261", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6201048 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/0261-01" ] }, { "cite": "424 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "424-25" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 357", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524345 ], "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0357-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-56", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "405 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "225", "parenthetical": "\"Nationwide's failure to plead N.C.G.S. \u00a7 1-52(16) by precise number and subsection is not fatal under N.C.G.S. \u00a7 1A-1, Rule 8(c).\"" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 219", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520123 ], "year": 1991, "pin_cites": [ { "page": "223", "parenthetical": "\"Nationwide's failure to plead N.C.G.S. \u00a7 1-52(16) by precise number and subsection is not fatal under N.C.G.S. \u00a7 1A-1, Rule 8(c).\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0219-01" ] }, { "cite": "344 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "304", "parenthetical": "\"North Carolina, apparently alone among American jurisdictions, continues to adhere to the rule that once the statute of limitations has been properly pleaded in defense the burden of proof shifts to the plaintiff to show that the action was filed within the statutory period.\"" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523104 ], "year": 1986, "pin_cites": [ { "page": "363-64" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0362-01" ] }, { "cite": "568 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "889", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248888 ], "year": 2002, "pin_cites": [ { "page": "147", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0144-01" ] }, { "cite": "193 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4161429 ], "year": 2008, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0096-01" ] }, { "cite": "695 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "688 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "202 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174259 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc-app/202/0247-01" ] }, { "cite": "541 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "236" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 714", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443249 ], "year": 2001, "pin_cites": [ { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0714-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-54.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "689 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "508", "parenthetical": "\"Defendant [Union County] may not use the APFO to obtain indirectly the payment of what amounts to an impact fee given that defendant lacks the authority to impose school impact fees directly.\"" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173000 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "381", "parenthetical": "\"Defendant [Union County] may not use the APFO to obtain indirectly the payment of what amounts to an impact fee given that defendant lacks the authority to impose school impact fees directly.\"" }, { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0374-01" ] }, { "cite": "265 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "158" } ], "opinion_index": 0 }, { "cite": "300 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559865 ], "year": 1980, "pin_cites": [ { "page": "130-31" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0126-01" ] }, { "cite": "689 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174597 ], "year": 2010, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0177-01" ] }, { "cite": "360 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796810 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0474-01" ] }, { "cite": "173 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353121 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "183" }, { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0180-01" ] }, { "cite": "250 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "912" } ], "opinion_index": 0 }, { "cite": "296 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565310 ], "year": 1978, "pin_cites": [ { "page": "147-48" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0109-01" ] }, { "cite": "688 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "37" }, { "page": "38" } ], "opinion_index": 0 }, { "cite": "490 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551159 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0262-01" ] }, { "cite": "450 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "jurisdiction proper where summary judgment granted to one defendant but fewer than all defendants on all of the plaintiff's claims" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524824 ], "year": 1994, "pin_cites": [ { "parenthetical": "jurisdiction proper where summary judgment granted to one defendant but fewer than all defendants on all of the plaintiff's claims" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0220-01" ] }, { "cite": "225 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "803", "parenthetical": "trial court is a \"dispatcher\" and determines \"the appropriate time when each 'final decision' upon 'one or more but less than all' of the claims in a multiple claims action is ready for appeal\"" } ], "opinion_index": 0 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "year": 1976, "pin_cites": [ { "page": "127", "parenthetical": "trial court is a \"dispatcher\" and determines \"the appropriate time when each 'final decision' upon 'one or more but less than all' of the claims in a multiple claims action is ready for appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "579", "parenthetical": "\"When the trial court certifies its order for immediate appeal under Rule 54(b), appellate review is mandatory.\"" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "year": 1999, "pin_cites": [ { "page": "162", "parenthetical": "\"When the trial court certifies its order for immediate appeal under Rule 54(b), appellate review is mandatory.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "545 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "261", "parenthetical": "orders made during the pendency of an action not disposing of entire controversy at trial are interlocutory" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433839 ], "year": 2001, "pin_cites": [ { "page": "164", "parenthetical": "orders made during the pendency of an action not disposing of entire controversy at trial are interlocutory" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0162-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-253", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 6, "year": 2009, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "431 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "803", "parenthetical": "\"[A] trial court cannot by denominating its decision a 'final judgment' confer appeal status under Rule 54(b) if its ruling is not indeed such a judgment.\" (citation omitted)" } ], "opinion_index": 1 }, { "cite": "111 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521434 ], "year": 1993, "pin_cites": [ { "page": "247", "parenthetical": "\"[A] trial court cannot by denominating its decision a 'final judgment' confer appeal status under Rule 54(b) if its ruling is not indeed such a judgment.\" (citation omitted)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/111/0244-01" ] }, { "cite": "507 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "60", "parenthetical": "citations and quotation marks omitted" }, { "page": "60" } ], "opinion_index": 1 }, { "cite": "131 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11198692 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "247", "parenthetical": "citations and quotation marks omitted" }, { "page": "247" } ], "opinion_index": 1, "case_paths": [ "/nc-app/131/0242-01" ] }, { "cite": "460 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "334" } ], "opinion_index": 1 }, { "cite": "119 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917406 ], "year": 1995, "pin_cites": [ { "page": "734" } ], "opinion_index": 1, "case_paths": [ "/nc-app/119/0730-01" ] }, { "cite": "477 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "695", "parenthetical": "quoting N.C. Dep't of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995)" } ], "opinion_index": 1 }, { "cite": "124 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889996 ], "year": 1996, "pin_cites": [ { "page": "524", "parenthetical": "quoting N.C. Dep't of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/124/0521-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736" } ], "opinion_index": 1 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "725" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0723-01" ] } ], "analysis": { "cardinality": 2180, "char_count": 69788, "ocr_confidence": 0.723, "pagerank": { "raw": 8.118430955340088e-08, "percentile": 0.46811242663182295 }, "sha256": "9e722fecf92ada1db6a5d7bc8d859a320682c1950a0e5a094c61aa8d9c051d5f", "simhash": "1:8ab0deba2e272d5a", "word_count": 11341 }, "last_updated": "2023-07-14T18:24:03.194595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN concurs.", "Judge JACKSON dissents with separate opinion." ], "parties": [ "AMWARD HOMES, INC., ANGE CONSTRUCTION COMPANY, BLUEPOINT HOMES, INC., HOMESCAPE BUILDING COMPANY, IMPACT DESIGN-BUILD, INC., JOHN LEGGETT AND COMPANY, POYTHRESS CONSTRUCTION COMPANY, INC., POYTHRESS HOMES, INC., WARDSON CONSTRUCTION, INC., WHG, INC. d/b/a TIMBERLINE BUILDERS, AND ZEIGLER & COMPANY, Plaintiffs v. TOWN OF CARY, a body politic and corporate, Defendant TRADITION AT STONEWATER I, LP, Plaintiff-Intervenor v. TOWN OF CARY, a body politic and corporate, Defendant to claim of Plaintiff-Intervenor" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nIn 2003, Jerry Turner & Associates, the developer of a proposed subdivision called Cameron Pond, submitted a subdivision proposal to the Town of Cary. The proposal sought permission from the Town to subdivide a 143-acre tract of land into 417 dwelling units. The Town of Cary approved the subdivision proposal, which contained a condition providing that no building permit would be issued within Cameron Pond unless building applicants paid a fee, pursuant to a set schedule, for the funding of schools in the Town of Cary. Under the proposal\u2019s terms, the developer of Cameron Pond would receive the benefit of the subdivided property, while the home builders seeking building permits would be required to pay the fees. No fees were required to be paid by the developer. According to the language of the condition, the fees paid by the builders satisfied the requirements of one of the Town\u2019s ordinances.\nThe builders in Cameron Pond \u2014 Amward Homes, Inc., Ange Construction Company, Bluepoint Homes, Inc., Homescape Building Company, Impact Design-Build, Inc., John Leggett and Company, Poythress Construction Company, Inc., Poythress Homes, Inc., Wardson Construction, Inc., WHG, Inc. d/b/a Timberline Builders, and Zeigler & Company (collectively \u201cplaintiffs\u201d) \u2014 paid the fees under the condition for approximately four years before filing this action to recover the fees. The amount is around $600,000 as of the filing of this appeal. The trial court granted plaintiffs\u2019 motion for summary judgment and found that (1) the Town of Cary had violated plaintiffs\u2019 due process and equal protection rights under the United States and North Carolina Constitutions, and (2) the condition and ordinance requiring the fees were void and ultra vires. The Town has filed this appeal.\nAfter careful review, we hold: (1) the Town of Cary engaged in ultra vires acts by accepting the fees pursuant to the condition and the subdivision ordinance, (2) plaintiffs\u2019 causes of action are not barred by the statute of limitations, (3) plaintiffs are not estopped from bringing their claims against the Town, (4) the Town of Cary violated plaintiffs\u2019 rights to due process and equal protection under the North Carolina and United States Constitutions, and (5) the trial court did not abuse its discretion in awarding plaintiffs attorneys\u2019 fees and costs. Accordingly, we affirm the trial court\u2019s orders.\nBACKGROUND\nOn 22 July 1999, the Town of Cary enacted an \u201cAdequate Public School Facilities\u201d ordinance (the \u201cAPSFO\u201d) for the following stated purpose: \u201cThe purpose of this part is to ensure that, to the maximum extent practical, new residential developments will be approved by the Town of Cary only when it can reasonably be expected that adequate public school facilities will be available to accommodate such new developments.\u201d Under the APSFO as first adopted, developers could gain zoning approval for a new planned unit development (\u201cPUD\u201d) by satisfying one of two requirements: (1) obtain a Certificate of Adequate Educational Facilities (\u201cCAEF\u201d) from Wake County Public Schools certifying that adequate school facilities were available to accommodate residents of new homes, or (2) qualify for an exemption from the APSFO by either building in a low population density area or constructing an affordable housing project.\nAt the time the APSFO was first enacted, Cary\u2019s Town Council was aware that they did \u201cnot control the provision of public school facilities,\u201d because the authority to build, fund, and manage schools fell within the exclusive province of the Wake County Public School System (\u201cWCPSS\u201d) and the Wake County Board of Commissioners (\u201cWCBC\u201d). In an effort to shore up their authority to enforce the APSFO, members of Cary\u2019s Town Council attempted to enter into a Memorandum of Understanding between the Town, WCPSS, and WCBC. The school board for WCPSS approved the memorandum, but the WCBC declined to adopt it. The resulting agreement between WCPSS and the Town of Cary was outlined in a non-binding memorandum of understanding whereby the Town and WCPSS agreed to \u201cwork cooperatively\u201d to meet certain target percentages for school enrollment capacity over a five-year period. In order to achieve these target percentages, the parties agreed to these provisions in the memorandum of understanding:\nAdequate Public Facilities Ordinance fAPFO). The Town will adopt an ordinance to limit the approval of major residential developments within the Town\u2019s jurisdiction to those that can be adequately served with existing or proposed school facilities.\nEstablishment of Procedure to Issue Certificates of Adequate Education Facilities fCAEF\u2019s). The School System will establish an administrative review process to receive and take action upon applications for . . . [CAEF\u2019s] submitted by developers who are required by the Town\u2019s [APSFO] to have such certificates before obtaining subdivision or site plan approval from the Town.\nThe School System will issue a CAEF for a proposed development if it concludes that, given the number of school age children projected to reside in that development, and considering all of the factors listed below, the number of students projected to attend the Wake County elementary, middle, and high schools that serve the corresponding attendance districts where the development site is located will not exceed the standards specified in paragraph 1 above.\n(Underlining added.) The memorandum listed a set of factors to be considered by WCPSS in making its determination to grant a CAEF, including current student population in the area of the proposed development, future and ongoing school construction, funding for school construction projects, increases in enrollment, Cary\u2019s population growth, changes in district boundaries, and any other factor deemed relevant by WCPSS.\nNeither the memorandum of understanding nor the APSFO granted the Town of Cary the authority to charge fees to developers or builders as part of the subdivision application process for the purpose of funding schools.\nOn 16 November 2001, the Town of Cary approved a PUD application for a subdivision called \u201cCary Park.\u201d The developers of Cary Park sought permission to develop 484 acres within Cary\u2019s town limits into 2,744 residential dwelling units. As part of the approved proposal, Cary Park agreed to build an elementary school for $5,500,000.00. With respect to Cary\u2019s APSFO, the agreement contained an acknowledgment provision where the parties agreed that Cary Park\u2019s payment for the school satisfied the APSFO, even though the APSFO at this time did not allow the Town to grant an exception on such grounds.\n(c) It is acknowledged and agreed that the performance of its obligations under this Paragraph 1(a) [construction of the school] by [Cary Park] shall satisfy all requirements of . . . Cary Park with respect to the Town\u2019s Adequate Public Facilities Ordinance for Schools.\nOn 10 October 2002, Cary\u2019s Town Council approved a development plan submitted by Jerry Turner & Associates (\u201cAmberly\u201d). Instead of paying for a school to comply with the APSFO like Cary Park, Amberly agreed to pay a fee directly to the Town of Cary with every building permit issued for units to be built in the development. The fee schedule, as reflected in the Town Council\u2019s meeting minutes, provided:\nAmberly\u2019s Proposal for Compliance with Cary\u2019s APF for Schools\nThis schedule was proposed by Amberly after the Planning and Zoning Board meeting but prior to the meeting of Cary\u2019s Town Council. According to the proposal, the fees were to be paid directly to the Town of Cary for school development. Between September 2002 and January 2003, Cary\u2019s Town Council approved the same payment fee schedule under the APSFO for subdivisions named \u201cStonewater,\u201d \u201cVillage at the Park,\u201d and \u201cRiggsbee Farm.\u201d Other proposals for developments, in particular the proposals for subdivisions \u201cGlenkirk\u201d and \u201cHuggins Glen,\u201d paid a flat fee of $2,000 per unit rather than a dollar amount per bedroom.\nOn 8 May 2003, Cary\u2019s Town Council approved a development proposal by Cameron Pond Development, LLC (\u201cCameron Pond\u201d). In Cameron Pond\u2019s proposal for a new PUD, the developer included a fee schedule to comply with the APSFO:\n17. Upon issuance of a building permit for each residential dwelling unit within Cameron Pond, Cameron Pond or its designee will pay the Town the following amount based on the size of the dwelling to comply with the Town\u2019s [APSFO] for schools:\nThis condition (\u201cCondition 17\u201d) traveled with the lots that were sold in Cameron Pond, and plaintiffs paid a fee according to the above schedule in order to acquire a building permit to construct a new home in the development. As a group, plaintiffs in Cameron Pond allege that, as of the filing of this appeal, they have paid over $600,000.00 in fees to comply with the APSFO.\nIn explaining why all these development proposals contained fees for schools \u2014 even though the APSFO contained no language regarding any fees whatsoever \u2014 a managing partner of Cameron Pond, Glenn Futrell, provided the following in his affidavit:\n5. The Cameron Pond PUD application was prepared and initially submitted in November 2002. In connection with the PUD application, I attended several meetings with Town staff and officials to discuss the proposed development and the conditions or amendments that would be necessary to obtain approval of the project by the Town Council.\n6. On more than one occasion during the approval process, I met with then-Mayor Glen Lang to discuss the Cameron Pond PUD. One of the topics discussed during these meetings was the manner in which the applicant would comply with'the Town\u2019s Adequate Public Facilities Ordinance (\u201cAPFO\u201d) for Schools. I was informed that the Town Council, and Mr. Lang in particular, expected the applicant to include a condition in the PUD requiring the payment of fees for school capacity based on the number of bedrooms within each dwelling unit in order to comply with the APFO.\n7. During our meetings, Mr. Lang expressed his strong desire for developers to enable the Town to make expenditures on schools within the Town\u2019s borders by paying school fees. I also understood that Mr. Lang controlled enough votes on the Town Council to insure that any application that did not comply would be denied.\n8. I was informed and understood that the Cameron Pond PUD would not be approved by the Town Council unless we accepted a condition requiring the payment of school fees. This was consistent with my prior dealings with the Town of Cary on other projects and the information that had been conveyed to me in connection with other residential PUD approvals.\nProject managers and other people involved with the PUD applications for Stonewater, Glenkirk, Cary Park, Amberly, Village at the Park, Riggsbee Farm, and Huggins Glen recounted similar stories during the application process.\nOn 1 July 2003, the Town of Cary amended the APSFO to officially allow the Town to accept fees to waive the requirements of the APSFO. In adding an exemption to the APSFO via payment of fees, the new ordinance read in part:\n3.18.2 Certificate of Adequate Educational Facilities (CAEF)\n(A) Except as provided by Section 3.18.6 below, no subdivision plan or site plan may be approved unless on the date of such approval there exists a valid and current Certificate of Adequate Educational Facilities (CAEF) applicable to the project for which such approval is sought.\n(B) A CAEF must be obtained from the Wake County Public School System in accordance with Section 3.18.4 below. The School System will issue or deny a CAEF in accordance with the provisions of the Memorandum of Understanding between the Town, and the Wake County Public School System, dated July 22, 1999.\n(D) CAEF\u2019s attach to the land in the same way that development.permission attaches to the land. CAEF\u2019s may be transferred along with other interests in the property with respect to which they are issued, but may not be severed or transferred separately.\n3.18.6 Exemption From Certification Requirement for Small, Low Density, and Affordable Housing Development Projects\n(A) A CAEF shall not be required, if the gross density of the proposed residential subdivision development does not exceed (i) one dwelling unit per two acres of the development tract, or (ii) the project is exempt from subdivision plan or site plan approval as allowed under the provisions of this Ordinance.\n(B) In addition, the Town Council may waive the requirements of this Ordinance in the case of affordable housing projects[.] . . .\n(C) The Town Council may also exempt proposed developments from the requirements of this Section on a case-by-case basis if the proposed development provided funds per unit to support new school development.\n(Emphasis added.) Under these amended procedures, a developer seeking to start a new housing development could gain permission from the Town of Cary if he or she either: (1) obtained a CAEF from Wake County Public Schools, (2) qualified for exemption due to low population density or the construction of an affordable housing project, or (3) offered a sufficient amount of money per home built to be paid to the Town of Cary directly for funding schools.\nThe amended APSFO was effective for about 14 months before it was repealed. On 9 September 2004, the Town of Cary repealed the APSF\u00d3 by adopting the following resolution.\n3.18 ADEQUATE PUBLIC SCHOOL FACILITIES (REPEALED 9/9/04)\nThe repeal of this section (Adequate Public School Facilities) shall be effective upon adoption and such repeal shall apply to applications for approval of subdivision plans or site plans that are submitted for approval by the Town after the effective date of repeal unless the property for which subdivision or site plan approval is sought is subject to a zoning condition or a developer agreement that requires compliance with this (the Adequate Public School Facilities) ordinance. These properties/planned developments include Cary Park (Rezoning Case # 00-REZ-04), Glenkirk (02-REZ-15), Cameron Pond (02-REZ-27), Amberly (02-REZ-05), Stonewater [(J02-REZ-08'), Village at the Park (02-REZ-06), Huggins Glen \u2014 currently know[n] as The Battery (02-REZ-26), and Riggsbee Farm\u2014 currently known as Stonecreek Village (02-REZ-23). If the property is subject to a developer agreement or zoning condition or other approval requiring or contemplating compliance, then such property shall be subject to the requirements of the developer agreement or zoning approval which shall be interpreted in terms of this ordinance as it exists immediately before repeal, unless such requirement is modified or removed after review on a case by case basis.\n(Emphasis added.) Because this repeal excluded Cameron Pond from the repealed requirements of the APSFO, builders applying for building permits in Cameron Pond continued to pay fees under Condition 17 to the Town of Cary.\nOn 27 September 2007, plaintiffs filed suit against the Town of Cary. In the complaint, plaintiffs sought: (1) an accounting; (2) a declaration that the fees under the APSFO were beyond the Town\u2019s statutory authority under N.C. Gen. Stat. \u00a7 160A-4 (2009); (3) a declaration that the APSFO violated plaintiffs\u2019 rights to equal protection and substantive due process under the United States and North Carolina Constitutions; (4) a declaration that the July 2003 amendment to the APSFO allowing for fees was beyond the statutory authority of the Town in violation of N.C.G.S. \u00a7 160A-4; (5) a declaration that the July 2003 amendment to the APSFO violated the plaintiffs\u2019 rights to equal protection and substantive due process; (6) a declaration that the repeal of the APSFO was beyond the Town\u2019s statutory authority; (7) a declaration that the repeal of the APSFO violated the plaintiffs\u2019 equal protection and substantive due process rights; (8) a declaration that the enforcement of the original APSFO, the July 2003 amendment to the APSFO, and the repeal of the APSFO via the collection of fees was beyond the statutory authority of the Town; (9) a declaration that the enforcement of the original APSFO, the July 2003 amendment to the APSFO, and the repeal of the APSFO via the collection of fees violated plaintiffs\u2019 equal protection and substantive due process rights under the North Carolina and United States Constitutions; (10) an injunction ordering a refund of the fees paid to the Town, a prohibition of the collection of further fees, and an accounting; and (11) damages under 42 U.S.C. \u00a7 1983 (2009) and Article I, section 19 of the North Carolina Constitution.\nOn 6 May 2008, Stonewater motioned the trial court to intervene in plaintiffs\u2019 action, and the motion was granted on 25 July 2008. Plaintiffs thereafter filed a motion for summary judgment on 12 January 2009, and the Town of Cary filed a competing motion for summary judgment on 13 February 2009.\nOn 5 March 2009, the trial court granted summary judgment to plaintiffs and denied the Town of Cary\u2019s motion for summary judgment. In finding for plaintiffs as a matter of law, the trial court explained in its order:\na. Pursuant to N.C. Gen. Stat. \u00a7 1-253, et seq., the Court hereby declares:\ni. that any obligation of Plaintiffs to pay fees or monies pursuant to Condition 17 of the Cameron Pond Planned Unit Development (\u201cPUD\u201d) and/or the Town of Cary\u2019s [APSFO], as amended, including without limitation the ordinance passed by the Town on September 9, 2004, is invalid, unenforceable, void and of no legal effect; and\nii. that the Defendant has violated Plaintiffs\u2019 rights to equal protection and due process as provided by Article I, Section 19 of the North Carolina Constitution and the Fourteenth Amendment to the United States Constitution.\nThe Town of Cary made a motion to amend the summary judgment order to add a certification for appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, and the trial court granted defendant\u2019s motion and filed an amended order on 1 April 2009. On 2 April 2009, the trial court granted plaintiffs\u2019 motion for attorneys\u2019 fees and costs under 42 U.S.C. \u00a7 1988(b) (2009) and awarded plaintiffs $368,008.82.\nThe Town of Cary filed a timely notice of appeal on 6 April 2009, and has raised seven issues for this Court: (1) whether the trial court and this Court lack subject matter jurisdiction over plaintiffs\u2019 claims and this appeal; (2) whether plaintiffs\u2019 claims are barred by the applicable statute of limitations; (3) whether plaintiffs\u2019 causes of action are barred by the doctrine of estoppel; (4) whether Condition 17 is outside the scope of the Town of Cary\u2019s authority; (5) whether the Town of Cary violated plaintiffs\u2019s'due process rights; (6) whether the Town of Cary violated plaintiffs\u2019 equal protection rights; and (7) whether the trial court erred in awarding plaintiffs\u2019 attorneys fees.\nANALYSIS\nI. Jurisdiction and Standard of Review\nWe note that this appeal is interlocutory given that plaintiffintervenor Stonewater\u2019s causes of action against the Town are still pending in the trial court. Embler v. Embler, 143 N.C. App. 162, 164, 545 S.E.2d 259, 261 (2001) (orders made during the pendency of an action not disposing of entire controversy at trial are interlocutory). However, where the trial court certifies an order under N.C.R. Civ. P. 54(b) (2010), jurisdiction in this Court is proper. Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (\u201cWhen the trial court certifies its order for immediate appeal under Rule 54(b), appellate review is mandatory.\u201d); see Oestreicher v. Stores, 290 N.C. 118, 127, 225 S.E.2d 797, 803 (1976) (trial court is a \u201cdispatcher\u201d and determines \u201cthe appropriate time when each \u2018final decision\u2019 upon \u2018one or more but less than all\u2019 of the claims in a multiple claims action is ready for appeal\u201d) (citation omitted); Trull v. Central Carolina Bank, 117 N.C. App. 220, 450 S.E.2d 542 (1994) (jurisdiction proper where summary judgment granted to one defendant but fewer than all defendants on all of the plaintiff\u2019s claims), aff\u2019d in part and disc. review improvidently allowed in part, 347 N.C. 262, 490 S.E.2d 238 (1997). In this case, given that summary judgment was granted in favor of plaintiffs on all their claims against the Town, and only the claims of Stonewater remain at trial, it is apparent that the trial court\u2019s order is \u201ca final judgment as to one ... but fewer than all of . . . [the] parties,\u201d and we agree that there is \u201cno just reason for delay.\u201d N.C.R. Civ. P. 54(b). Jurisdiction in this Court is accordingly proper under Rule 54(b).\n\u201cWe review orders granting summary judgment de novo.\u201d Self v. Yelton, 201 N.C. App.653, 658, 688 S.E.2d 34, 37 (2010). Summary judgment is proper \u201cif 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.\u201d N.C.R. Civ. P. 56(c) (2010). The burden rests initially on the moving party to show that there exists no genuine issue of material fact. Self, 201 N.C. App. at 658, 688 S.E.2d at 38. \u201cIf a moving party shows that no genuine issue of material fact exists for trial, the burden shifts to the nonmovant to adduce specific facts establishing a triable issue.\u201d Id.\nII. Subject Matter Jurisdiction\nThe Town of Cary argues that the trial court and this Court lack subject matter jurisdiction over this case for two reasons: (1) the APSFO was repealed, rendering plaintiffs\u2019 causes of action moot; and (2) plaintiffs lack standing to challenge the APSFO, because the sole reason plaintiffs had to pay the scheduled fees was due to Condition 17 rather than the APSFO itself. We do not agree.\nA. Mootness\n\u201cWhenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.\u201d In re Peoples, 296 N.C. 109, 147-48, 250 S.E.2d 890, 912 (1978). \u201cRepeal of a challenged law generally renders moot the issue of the law\u2019s interpretation or constitutionality.\u201d Property Rights Advocacy Grp. v. Town of Long Beach, 173 N.C. App. 180, 183, 617 S.E.2d 715, 718, appeal dismissed and disc. review denied, 360 N.C. 177, 626 S.E.2d 649 (2005), aff\u2019d per curiam, 360 N.C. 474, 628 S.E.2d 768 (2006). \u201cHowever, the repeal of a challenged statute does not have the effect of mooting a claim arising under that statute in the event that. . . the repeal of the challenged statute does not provide the injured party with adequate relief or the injured party\u2019s claim remains viable.\u201d Bailey and Associates, Inc. v. Wilmington Bd. of Adjustment, 202 N.C. App. 177, 182, 689 S.E.2d 576, 582 (2010).\nIn this case we are presented with an ordinance exempting specific parties from the effect of a repeal. Plaintiffs have filed this action for the dual purposes of (1) reclaiming the APSFO fees they have already paid and (2) preventing the Town of Cary from charging any further fees under Condition 17. Since the repeal of the APSFO here does not redress either of these claims, clearly the issues raised in this case are still viable and not moot.\nB. Standing\n\u201cStanding refers to whether a party has a sufficient stake in an otherwise justiciable controversy such that he or she may properly seek adjudication of the matter.\u201d Property Rights Advocacy Group, 173 N.C. App. at 182, 617 S.E.2d at 717 (citation and internal quotation marks omitted). \u201cStanding to challenge the constitutionality of a legislative enactment exists where the litigant has suffered, or is likely to suffer, a direct injury as a result of the law\u2019s enforcement.\u201d Maines v. City of Greensboro, 300 N.C. 126, 130-31, 265 S.E.2d 155, 158 (1980).\nThe Town of Cary\u2019s contention that plaintiffs lack standing rests on the nature of Condition 17. The Town asserts that Condition 17 is only a rezoning condition which was not mandated by the APSFO at the time Cameron Pond was approved as a subdivision, and based on this fact, the Town contends that plaintiffs\u2019 predecessor-in-interest voluntarily agreed to the condition now causing plaintiffs\u2019 damages. The Town argues that since Condition 17 is the sole source of injury, and it was caused by the developer of Cameron Pond, plaintiffs lack standing to pursue their claims against the Town.\nThis argument by the Town of Cary regarding the voluntariness of Condition 17 is, in reality, a sword with two edges. In accepting Cameron Pond\u2019s subdivision proposal, the Town voluntarily accepted the plain, unambiguous language of Condition 17: \u201cUpon issuance of a building permit for each residential dwelling unit within Cameron Pond, Cameron Pond or its designee will pay the Town the following amount based on the size of the dwelling to comply with the Town\u2019s [APSFO] for schools].]\u201d (Emphasis added.) If the Town did not wish this language regarding the APSFO to be part of Condition 17, there existed ample time to change the language prior to the adoption of Cameron Pond\u2019s proposal. As it stands, Condition 17 is patently connected to the APSFO as it existed at the time the proposal was accepted by Cary\u2019s Town Council. Thus, plaintiffs have standing to challenge the Town\u2019s imposition of fees purportedly due to the requirements of the APSFO.\nIII. Ultra Vires\nThe Town of Cary argues that Condition 17 is not ultra vires. We disagree.\nIn Union Land Owners Ass\u2019n v. County of Union [Union], this Court examined the imposition of school impact fees similar to those at issue in this case, and concluded that there exists no statutory authority for such fees. 201 N.C. App. 374, 381, 689 S.E.2d 504, 508 (2009) (\u201cDefendant [Union County] may not use the APFO to obtain indirectly the payment of what amounts to an impact fee given that defendant lacks the authority to impose school impact fees directly.\u201d). In its reply brief, the Town attempts to distinguish Union on a variety of grounds which we now address.\nThe Town contends that Union is distinguishable because: (1) in Union, the mechanism for imposing the fees was through an ordinance, and in this case the device is Condition 17; and (2) the developers in Union had their projects delayed if they did not pay the fees, and in this case the developer was never delayed due to the APSFO. Neither of these arguments have merit.\nAs discussed supra, Condition 17 is inextricably tied to the APSFO by the language accepted by the Town. The language of Condition 17 is a reflection of the Town\u2019s interpretation of the APSFO, its own ordinance, at the time it approved Cameron Pond. Thus, the Town cannot now claim that the fees paid were not pursuant to the APSFO. Moreover, whether a project was delayed due the APSFO has no bearing on the issue of ultra vires \u2014 either the Town had the authority to accept fees or it did not. To answer this question, we now examine our holding in Union to determine whether Condition 17 is ultra vires.\nIn Union, the County contended that three sources of authority supported its APFO: \u201c(1) statutes relating to the county police power, (2) zoning statutes, and (3) subdivision statutes.\u201d 201 N.C. App. at 377, 689 S.E.2d at 506. Under the APFO adopted by Union County, the county could approve a subdivision plan that adversely affected school capacity by satisfying one of the following conditions:\n(1) deferring approval for five years; (2) postponing development until school capacity becomes available; (3) scheduling the development to match the rate of school capacity growth; (4) redesigning the proposed development to reduce the impact on school capacity; (5) requesting minor plat approval so as to exempt the proposed development from APFO conditions; (6) offsetting any excess impact on school capacity resulting from the proposed development by providing a VMP [Voluntary Mitigation Payment] to the County; (7) constructing school facilities to offset the proposed development\u2019s impact in excess of estimated school capacity; or (8) satisfying, with defendant\u2019s approval, other reasonable conditions offsetting the proposal\u2019s impact on the capacity of schools serving the proposed development.\nId. at 376, 689 S.E.2d at 505. The VMP\u2019s in Union, like those at issue here, were proposed at the subdivision proposal phase, and the County chose to deny or accept subdivision proposals, in part, based on whether the VMP\u2019s were adequate. Id. In holding that the APFO in Union was beyond the County\u2019s authority, this Court held:\nTherefore, because our Constitution places the duty to fund public schools on the General Assembly and local governments and because the General Assembly has neither expressly nor impliedly authorized defendant to shift that duty using subdivision ordinances that impose fees or use similar devices upon developers of new construction, we hold that defendant\u2019s adoption of an APFO that includes a VMP and similar measures was in excess of its statutory authority.\nId. at 381, 689 S.E.2d at 508.\nCondition 17 plainly falls within the scope of our holding in Union. The Town of Cary had no statutory authority to adopt the APSFO or accept fees under it, and Condition 17 and the APSFO illegally shifted the burden of paying for public education to the subdivision builder-plaintiffs in this case. Moreover, even though Union was not decided until after the Town of Cary adopted the APSFO, the Town should have known that Condition 17 was ultra vires, because the APSFO at the time Cameron Pond was approved gave the Town no authority to accept fees in lieu of satisfying the APSFO\u2019s requirements. The record clearly shows, contrary to the Town\u2019s explanations, that upon the adoption of the APSFO in this case, the Town of Cary entered into a custom and practice of accepting fees pursuant to the APSFO. The Town has failed to establish even a color-able claim that the acceptance of these fees was within the Town\u2019s authority, and accordingly, we can discern no genuine issue of material fact on this issue.\nSince the Town had no authority to enact or enforce the APSFO or Condition 17, it likewise had no authority to require plaintiffs to continue paying the illegal fees when the APSFO was repealed. Therefore, under Union, we conclude that the APSFO and Condition 17 are ultra vires, and hold that the trial court did not err in declaring that they are \u201cinvalid, unenforceable, void and of no legal effect.\u201d This assignment of error is overruled.\nIV. Statute of Limitations\nA. Two-Month Statute of Limitations\nThe Town of Cary argues that plaintiffs\u2019 claims are barred by the two-month statute of limitations contained in N.C. Gen. Stat. \u00a7 160A-364.1 (2009). We do not agree.\nSection 160A-364.1 provides:\nA cause of action as to the validity of any zoning ordinance, or amendment thereto, adopted under this Article or other applicable law shall accrue upon adoption of the ordinance, or amendment thereto, and shall be brought within two months as provided in G.S. 1-54.1.\nN.C.G.S. \u00a7 160A-364.1 (emphasis added); see N.C. Gen. Stat. \u00a7 1-54.1 (2009) (\u201cWithin two months an action contesting the validity of any zoning ordinance or amendment thereto adopted by a county under Part 3 of Article 18 of Chapter 153A of the General Statutes or other applicable law or adopted by a city under Chapter 160A of the General Statutes or other applicable law.\u201d). Where these statutes are applicable, this Court has strictly applied the two-month statute of limitations to bar causes of action challenging an ordinance. See, e.g., Potter v. City of Hamlet, 141 N.C. App. 714, 719, 541 S.E.2d 233, 236 (2001).\nIn this case, we hold that the two-month statute of limitations in N.C.G.S. \u00a7 160A-364.1 does not apply, because the APSFO is a subdivision ordinance rather than a zoning ordinance. Section 3.18.2(A) of the APSFO provides that \u201cno subdivision plan or site plan may be approved unless on the date of such approval there exists a valid and current Certificate of Adequate Educational Facilities (CAEF) applicable to the project for which such approval is sought.\u201d (Emphasis added.) Moreover, in addition to the APSFO\u2019s plain language, the term \u201csubdivision\u201d under Chapter 160A of our General Statutes is defined as:\n[A]ll divisions of a tract or parcel of land into two or more lots, building sites, or other divisions when any one or more of those divisions is created for the purpose of sale or building development (whether immediate or future) and shall include all divisions of land involving the dedication of a new street or a change in existing streetsf.]\nN.C. Gen. Stat. \u00a7 160A-376(a) (2009). The accepted proposal by Cameron Pond satisfies this definition.\nIn Coventry Woods Neighborhood Ass\u2019n, Inc. v. City of Charlotte, this Court recently restated the reasoning behind the exclusion of subdivision ordinances from the two-month statute of limitations in section 160A-364.1. 202 N.C. App. 247, 688 S.E.2d 538, appeal dismissed, 364 N.C. 128, 695 S.E.2d 757 (2010). \u201cThe regulation of subdivisions and zoning are addressed in separate provisions of Chapter 160A of the General Statutes. As a result, the limitations period relating to challenges to \u2018zoning ordinances\u2019 set out in [N.C.G.S. \u00a7\u00a7 1-54.1 and 160A-364.1] simply does not apply to challenges to the constitutionality of subdivision ordinance provisions[.]\u201d Id. at 254, 688 S.E.2d at 543 (citation omitted); see also Meares v. Town of Beaufort, 193 N.C. App. 96, 104, 667 S.E.2d 239, 244 (2008) (\u201c \u2018Although this Court has recognized that the legal principles involved in review of zoning applications are similar and relevant to review of the denial of subdivision applications, we have also stated that zoning statutes do not limit how a subdivision applicant may seek judicial review.\u2019 \u201d) (quoting Hemphill-Nolan v. Town of Weddington, 153 N.C. App. 144, 147, 568 S.E.2d 887, 889 (2002) (citation and quotations omitted)). Thus, since the APSFO at issue here is a \u201csubdivision\u201d ordinance, section 160A-364.1 is not the applicable statute of limitations to plaintiffs\u2019 causes of action.\nThis conclusion does not, however, end our analysis. As a general rule, the burden is on a defendant to plead and prove an affirmative defense under Rule 8 of the North Carolina Rules of Civil Procedure. N.C.R. Civ. P. 8(c) (2010). However, in North Carolina, once the defense of statute of limitations is raised, the burden is on the plaintiff to show that their claim is not time-barred. Georgia-Pacific Corp. v. Bondurant, 81 N.C. App. 362, 363-64, 344 S.E.2d 302, 304 (1986) (\u201cNorth Carolina, apparently alone among American jurisdictions, continues to adhere to the rule that once the statute of limitations has been properly pleaded in defense the burden of proof shifts to the plaintiff to show that the action was filed within the statutory period.\u201d). A defendant\u2019s failure to raise the precise General Statute prescribing the time period for the statute of limitations does not alleviate a plaintiff\u2019s burden on this issue. See Bonestell v. North Topsail Shores Condominiums, 103 N.C. App. 219, 223, 405 S.E.2d 222, 225 (1991) (\u201cNationwide\u2019s failure to plead N.C.G.S. \u00a7 1-52(16) by precise number and subsection is not fatal under N.C.G.S. \u00a7 1A-1, Rule 8(c).\u201d).\nIn light of the above principles, we turn to plaintiffs\u2019 claim that all their claims are governed by the ten-year statute of limitations contained in N.C. Gen. Stat. \u00a7 1-56 (2009).\nB. Claims under 42 U.S.C. \u00a7 1983\nIn Faulkenbury v. Teachers\u2019 and State Employees\u2019 Retirement System of North Carolina, this Court noted that the three-year statute of limitations for personal injuries in N.C. Gen. Stat. \u00a7 1-52 applies to actions brought under section 1983. 108 N.C. App. 357, 367, 424 S.E.2d 420, 424-25 (citing Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254 (1985)), aff\u2019d, 335 N.C. 158, 436 S.E.2d 821 (1993). However, even though the limitations period is prescribed by state law, the question of \u201cwhen a \u00a7 1983 cause of action accrues is a question of federal law.\u201d Housecalls Home Health Care, Inc. v. State Dept. of Health and Human Services, 200 N.C. App. 66, 72, 682 S.E.2d 741, 745 (2009), disc. review denied and appeal dismissed, 363 N.C. 802, 690 S.E.2d 698 (2010). A cause of action accrues under federal law \u201c \u2018when [a] plaintiff knows or has reason to know of the injury which is the basis of the action.\u2019 \u201d Id. (quoting Nat\u2019l Adver. Co. v. Raleigh, 947 F.2d 1158, 1162 (4th Cir. 1991)).\nPlaintiffs have pled that they have paid the fees pursuant to Condition 17 \u201cunder protest.\u201d Thus, it appears each plaintiffs\u2019 cause of action accrued the first time an application was made for a building permit and the fee was paid to the Town under Condition 17. The exact time of accrual is different for each individual plaintiff under this standard; however, the record shows that all of plaintiffs\u2019 claims accrued sometime between 3 May 2005 and 27 September 2007, the time period from the time the first payment was made by any of the plaintiffs and the filing of the complaint. The first payments were made on 3 May 2005 by Bluepoint Homes and Impact Design-Build, Inc. Bluepoint paid the Town $4,000 and Impact paid $3,000.\nThe Town contends that plaintiffs\u2019 causes of action accrued at the time the APSFO was adopted or when Cameron Pond was approved in May 2003. Even assuming arguendo that either of these dates are the date of accrual, plaintiffs\u2019 suit is not barred, because plaintiffs also argue that the Town\u2019s acceptance of the fees pursuant to Condition 17 was a continuing violation. The \u201ccontinuing wrong doctrine\u201d is \u201can exception to the general rule that a claim accrues when the right to maintain a suit arises.\u201d Babb v. Graham, 190 N.C. App. 463, 481, 660 S.E.2d 626, 637 (2008), disc. review denied, 363 N.C. 257, 676 S.E.2d 900 (2009). \u201cWhen this doctrine applies, a statute of limitations does not begin to run until the violative act ceases.\u201d Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 179, 581 S.E.2d 415, 423 (2003). \u201c \u2018A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.\u2019 \u201d Id. (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)). In determining whether a plaintiff suffers from a continuing violation, we consider \u201c \u2018[t]he particular policies of the statute of limitations in question, as well as the nature of the wrongful conduct and harm allegedf.]\u2019 \u201d Id. (quoting Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971)). The tolling of the statute of limitations for section 1983 claims is governed by state law unless the state law is inconsistent with \u201ceither \u00a7 1983\u2019s chief goals of compensation and deterrence or its subsidiary goals of uniformity and federalism[.]\u201d Hardin v. Straub, 490 U.S. 536, 539, 104 L. Ed. 2d 582, 588-89 (1989) (footnote omitted).\nWe hold that the acceptance of each fee under Condition 17 was a continuing wrong by the Town, because the violation was the result of \u201ccontinual unlawful acts\u201d rather than merely the \u201ccontinual ill effects from an original violation.\u201d Ward, 650 F.2d at 1147. Each time a builder-plaintiff applied for a permit and paid the fee to the Town, the Town perpetuated its \u201ccustom\u201d or \u201cusage\u201d under \u201ccolor of... ordinance\u201d to unlawfully deprive the builders of their money. 42 U.S.C. \u00a7 1983. In North Carolina, we have long held that the payment of such illegal fees tolls the running of the statute of limitations, and that a plaintiff is entitled to recover all fees within the limitations period from the time their cause of action is initiated. Cf. Faulkenbury v. Teachers\u2019 and State Employees\u2019 Ret. Sys., 345 N.C. 683, 695, 483 S.E.2d 422, 429 (1997) (\u201cWe believe that the reductions in payments under the new systems were deficiencies which have continued to the present time.\u201d); Haanebrink v. Meyer, 47 N.C. App. 646, 648, 267 S.E.2d 598, 599 (1980) (\u201cThe right of action to recover the penalty for usury paid accrues upon each payment of usurious interest giving rise to a separate cause of action to recover the penalty therefor, which action is barred by the statute of limitations at the expiration of two years from such payment.\u201d). This rule applies so long as the illegality was not complete at the time the transaction took place between the parties. See, e.g., Shepard v. Ocwen Federal Bank, FSB, 172 N.C. App. 475, 617 S.E.2d 61 (2005), aff'd, 361 N.C. 137, 638 S.E.2d 197 (2006).\nHere, similar to our Supreme Court\u2019s holding in Faulkenbury, the acceptance of the illegal fees by the Town was a continuing violation, and plaintiffs are entitled to seek the recovery of the fees dating back to 27 September 2004, three years from the filing of their complaint, pursuant to their 42 U.S.C. \u00a7 1983 causes of action. See Marzec v. Nye, 203 N.C. App. 88, 94, 690 S.E.2d 537, 542 (2010); South Shell Investment v. Town of Wrightsville Beach, 703 F. Supp. 1192, 1195 (E.D.N.C. 1988) (\u201c[T]he pretrial order . . . shows that all of the impact and tap fees paid by. . . plaintiffs were paid within three years of the motion to amend except for the payment of one tap fee of $2,250.00[.] . . . Plaintiffs\u2019 claim for that payment, therefore, is barred by the statute of limitations.\u201d), aff\u2019d, 900 F.2d 255 (4th Cir. 1990). Since the first impact fees were paid in May 2005, plaintiffs are entitled to recover all the fees they have paid by application of the continuing wrong doctrine in addition to the standard operation of the statute of limitations.\nC. Article I, section 19 Claims\nThe trial court awarded plaintiffs\u2019 recovery of the fees paid under Condition 17 under both the North Carolina Constitution and 42 U.S.C. \u00a7 1983. Article I, section 19 of the North Carolina Constitution \u201cis self-executing, and neither requires any law for its enforcement, nor is susceptible\u2019 of impairment by legislation.\u201d Sale v. Highway Commission, 242 N.C. 612, 617, 89 S.E.2d 290, 295 (1955). A direct cause of action to enforce the rights contained in Article I of the North Carolina Constitution is permitted in circumstances where there is an \u201c \u2018absence of an adequate state remedy.\u2019 \u201d Davis v. Town of Southern Pines, 116 N.C. App. 663, 675, 449 S.E.2d 240, 247 (1994) (citation omitted); see, e.g., Glenn-Robinson v. Acker, 140 N.C. App. 606, 632, 538 S.E.2d 601, 620 (2000) (\u201cAs we have reversed the trial court\u2019s grant of summary judgment on plaintiff\u2019s state tort law claims against Acker, there is an adequate state remedy for plaintiff\u2019s alleged injury resulting from Acker\u2019s conduct.\u201d). In examining whether a state constitutional claim can proceed under the \u201cadequate state remedy\u201d standard, our Supreme Court has given the North Carolina \u201cConstitution a liberal interpretation in favor of its citizens with respect to those provisions which were designed to safeguard the liberty and security of the citizens in regard to both person and property.\u201d Corum v. University of North Carolina, 330 N.C. 761, 783, 413 S.E.2d 276, 290 (1992); Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 338, 678 S.E.2d 351, 354 (2009) (\u201c \u2018[I]n the absence of an adequate state remedy, one whose state constitutional rights have been abridged has a direct claim against the State under our Constitution.\u2019 \u201d) (quoting Corum, 330 N.C. at 782, 413 S.E.2d at 289).\nCauses of action brought pursuant to the North Carolina Constitution, however, are not without limits, and may be subject to dismissal if untimely. See Mahaffey v. Forsyth County, 99 N.C. App. 676, 394 S.E.2d 203 (1990) (state constitutional challenge to zoning ordinance held barred by statute of limitations contained in N.C.G.S. \u00a7 1-54.1), aff\u2019d, 328 N.C. 323, 401 S.E.2d 365 (1991); Midgett v. Highway Commission, 260 N.C. 241, 132 S.E.2d 599 (1963) (takings claim against North Carolina Department of Transportation barred by statute of limitations), overruled on other grounds, Lea Co. v. North Carolina Bd. of Transp., 308 N.C. 603, 304 S.E.2d 164 (1983). In determining the limitations period for claims under the North Carolina Constitution, we must examine a plaintiff\u2019s cause of action and apply the statute of limitations encompassing the claim at issue. See Pinehurst Area Realty, Inc. v. Village of Pinehurst, 100 N.C. App. 77, 394 S.E.2d 251 (1990) (state and federal constitutional claims barred by former nine-month statute of limitations applying to zoning ordinance challenges); Staley v. Lingerfelt, 134 N.C. App. 294, 297, 517 S.E.2d 392, 395 (1999) (three-year statute of limitations applies to state constitutional claims involving personal injury).\nHere, we conclude that plaintiffs have no adequate state remedy available in these circumstances, and therefore their state constitutional claims are appropriate. After reviewing the entirety of Chapter I, article 5 of our General Statutes, N.C. Gen. Stat. \u00a7 1-46 through -55 (2009), we can ascertain no specific shorter limitations period applying to the type of declaratory claims brought by plaintiffs in this case. Plaintiffs\u2019 claims involve the Town\u2019s custom, usage, and practice of accepting fees through an abandoned and unlawful mechanism grandfathered by a subdivision plan. Our General Statutes do not delineate a shortened time frame for such causes of action. Accordingly, we hold that the ten-year statute of limitations in N.C.G.S. \u00a7 1-56 applies, and plaintiffs are entitled to recoup all of the fees that they have sought in their complaint pursuant to their claims under Article I, section 19 of the North Carolina Constitution.\nPlaintiffs have carried their burden of showing that their claims are not barred, and the Town has failed to adduce any facts showing an issue for trial. Therefore, summary judgment on this issue was proper. The Town\u2019s assignment of error is overruled.\nV. Estoppel\nThe Town of Cary argues that all of plaintiffs\u2019 claims are barred by the doctrine of estoppel. The Town contends that since plaintiffs and their predecessor-in-interest accepted the benefits of their subdivision approval with Condition 17, they are now precluded from challenging it. We disagree.\n\u201cThe acceptance of benefits under a statute generally precludes an attack upon it.\u201d Convent v. Winston-Salem, 243 N.C. 316, 324, 90 S.E.2d 879, 884 (1956) [Covenant]. Under the doctrine of estoppel, a plaintiff \u201ccannot claim the benefit of statutes and afterwards assail their validity. There is no sanctity in such a claim of constitutional right as prevents it being waived as any other claim of right may be.\u201d Id.\n\u201cEstoppel to question the constitutionality of laws applies not only to acts of the Legislature, but to ordinances and proceedings of municipal corporations, and may be extended to cases where proceedings of a municipal corporation are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as to cases where they are attacked on other grounds.\u201d\n. . . \u201cEstoppel is most frequently applied in cases involving constitutional law where persons, in some manner, partake of advantages under statutes. The rule is well settled that one who voluntarily proceeds under a statute and claims benefits thereby conferred will not be heard to question its constitutionality in order to avoid its burdens. Certainly such a person will not be allowed to retain his advantage or keep his consideration and then repudiate the act as unconstitutional. This principle applies also to questioning the rules or actions of state commissions.\u201d\nId. at 324, 90 S.E.2d at 884-85 (citation omitted). In Covenant, this State\u2019s Supreme Court held that the acceptance of benefits pursuant to an ordinance by a prior owner in a property\u2019s chain of title may estop a challenge by a successor-in-interest, where the successor-in-interest also participated in the benefit and had knowledge of the benefit prior to taking ownership. Id. at 326, 90 S.E.2d at 885-86 (\u201c[T]he Sisters took title to the property with full knowledge, and are estopped to challenge the validity of the ordinance under which they are permitted to conduct a private school.\u201d).\nThis Court applied these principles in Goforth Properties, Inc. v. Town of Chapel Hill, 71 N.C. App. 771, 323 S.E.2d 427 (1984). In Goforth, the plaintiffs sought recovery of fees paid to the Town of Chapel Hill. Id. at 772, 323 S.E.2d at 429. The fees were paid pursuant to an ordinance requiring a developer to either (1) install parking spaces within 500 feet of a building being constructed in the Town\u2019s central business district or (2) pay $2,500 per space not constructed under the ordinance. Id. at 772, 323 S.E.2d at 428. Since the plaintiffs in Goforth could not construct the required parking spaces within 500 feet of the building, the plaintiffs paid $28,750 in fees in order to receive their building permit. Id.\nThe Goforth plaintiffs filed suit to recover the fees under claims of negligence, illegality, and unconstitutionality of the ordinance, both as written and as applied. Id. at 772, 323 S.E.2d at 429. The trial court granted summary judgment to the Town of Chapel Hill on all of the plaintiffs\u2019 causes of action. Id. On appeal, this Court upheld summary judgment under the doctrine of estoppel.\nIt is undisputed in the present case that plaintiffs have in fact, constructed their restaurant. Nowhere do plaintiffs challenge the Town\u2019s requirement of a certain number of off-street parking spaces for the restaurant. The Town\u2019s uncontradicted evidence shows that plaintiffs cannot physically construct the necessary number of spaces on site; nothing in the record suggests any effort by plaintiffs to provide the spaces elsewhere within the 500 foot distance. The Town\u2019s uncontradicted evidence also shows that under the terms of the ordinance plaintiffs could not have built a building of the size of the one actually constructed. Plaintiffs have never applied for a variance, and they have not offered to demolish their building, apparently the only other feasible alternative. We therefore hold that, having accepted the benefit of the payment scheme by constructing the restaurant in its present, otherwise illegal size, plaintiffs are estopped to challenge the validity of the ordinances. Summary judgment on plaintiffs\u2019 statutory and constitutional challenges was therefore proper.\nId. at 773-74, 323 S.E.2d at 429. Without further discussion of the merits of plaintiffs\u2019 constitutional claims or their causes of action under the theory of illegality, this Court affirmed the trial court\u2019s order granting summary judgment to the Town of Chapel Hill.\nHere, the Town contends that plaintiffs accepted the following benefits:\n5. When Cameron Pond was rezoned to a PUD overlay district in May of 2003, the total number of potential dwelling units rose from 292 to 417.\n6. In addition to the increased density provided by the 2003 rezoning, Cameron Pond received the following zoning benefits per various conditions that were mutually acceptable between the applicant and the Town:\na. all building setbacks could be reduced by a maximum of 10% by the Town without evidence of a hardship or the requirement to gain a variance from the Zoning Board of Adjustment as would normally be the case;\nb. building setbacks as specified in the PUD document were exempt from future ordinance changes, a zoning provision which was not normally available to other properties;\nc. buffers and streetscapes as specified in the PUD were exempt from future code changes, a zoning provision which was not normally available to other properties;\nd. the developer retained the option to implement alternate street designs from Town of Cary standards, a zoning provision which was not normally available to other properties; and\ne. where buffers and topography created barriers to street crossings, the developer obtained a waiver from the street connectivity requirements in Cary\u2019s [Unified Development Ordinance].\nA close examination of these benefits demonstrates how plaintiffs, unlike the plaintiffs in Goforth and Covenant, have not received any benefit under the APSFO or Condition 17. The primary benefit of the Cameron Pond subdivision proposal was an increase in the number of building lots on the 143 acres comprising the subdivision. After Cameron Pond was approved, the developer reaped this benefit to sell 125 additional lots. The secondary benefits outlined above involving setback standards, streetscapes, street design, and design barriers allowed the developer of Cameron Pond to arrange these additional lots with minimal interference from the Town during construction. While the developer of Cameron Pond reaped these numerous benefits, builder-plaintiffs were burdened only with the detriment of paying the fees under Condition 17.\nThe Town of Cary fails to demonstrate how plaintiffs have received any benefit at all. There is no allegation that any of plaintiffs were able to build more homes through Condition 17 or that the zoning variances somehow benefitted plaintiffs through the building process. In Covenant, the Sisters fully benefitted under the ordinance accepted by the predecessor-in-interest by being able to run their school. Covenant, 243 N.C. at 316, 90 S.E.2d at 885-86. No such similar benefit is present in this case. The record instead shows that the developer of Cameron Pond agreed to Condition 17 despite their feeling that the condition was unlawful, and then passed the burden of Condition 17 to plaintiffs, who had to actually pay the fees when applying for building p\u00e9rmits. Since the Town has failed to show that plaintiffs have received any benefit under the APSFO or Condition 17, even though plaintiffs have been forced to participate in the Town\u2019s illegal custom and practice of imposing and accepting the fees, plaintiffs are not estopped from pursuing their claims. This assignment of error is overruled.\nVI. Due Process\nThe Town of Cary argues that it did not violate plaintiffs\u2019 substantive due process rights. We disagree.\n\u201cIn general, substantive due process protects the public from government action that [1] unreasonably deprives them of [2] a liberty or property interest.\u201d Toomer v. Garrett, 155 N.C. App. 462, 469, 574 S.E.2d 76, 84 (2002). \u201c \u2018Substantive due process denotes a standard of reasonableness and limits a state\u2019s exercise of its police power[.]\u2019 \u201d Beneficial North Carolina v. State ex rel. Banking Comm., 126 N.C. App. 117, 127, 484 S.E.2d 808, 814 (1997) (citation omitted). \u201cThe traditional substantive due process test has been that a statute must have a rational relation to a valid state objective.\u201d Id. (citations and quotation marks omitted). \u201c \u2018Substantive due process\u2019 protection prevents the government from engaging in conduct that \u2018shocks the conscience,\u2019 or interferes with rights \u2018implicit in the concept of ordered liberty.\u2019 \u201d State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998) (citations omitted). \u201cSubstantive due process is a guaranty against arbitrary legislation, demanding that the law shall not be unreasonable, arbitrary or capricious, and that the law be substantially related to the valid object sought to be obtained.\u201d State v. Joyner, 286 N.C. 366, 371, 211 S.E.2d 320, 323 (1975). \u201cOur courts have long held that \u2018[t]he \u201claw of the land\u201d clause has the same meaning as \u201cdue process of law\u201d under the Federal Constitution.\u2019 \u201d State v. Guice, 141 N.C. App. 177, 186, 541 S.E.2d 474, 480 (2000) (citation omitted).\nApplying these principles to this case, plaintiffs were required to make two showings in their substantive due process claim: (1) demonstrate a fundamental property interest protected by the Fourteenth Amendment or the North Carolina Constitution; and (2) prove that they were deprived of this property interest by government action that either \u201cshocks the conscience\u201d or has no \u201crational relation to a valid state objective.\u201d There is no genuine issue of material fact regarding the first element, because plaintiffs had a property interest in the fees that they paid to the Town of Cary. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 766, 162 L. Ed. 2d 658, 675 (2005). There is also no genuine issue of material fact as to the second element, because the Town of Cary had no authority under its own APSFO to charge the fees at the time the Cameron Pond proposal was accepted,' and the Town had no statutory authority to enact the APSFO. As a result, the fees paid by plaintiffs pursuant to Condition 17 and the APSFO had no relation to a \u201cvalid\u201d state objective.\nGiven that plaintiffs satisfied their burden of proof, the trial court correctly concluded that plaintiffs were entitled to judgment as a matter of law on their substantive due process claims under the United States and North Carolina Constitutions in the absence of a triable issue presented by the Town of Cary. This assignment of error is overruled.\nVII. Equal Protection\nThe Town of Cary argues that it did not violate plaintiffs\u2019 equal protection rights. We disagree.\n\u201cThe Equal Protection Clause of the Fourteenth Amendment provides that \u2018no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.\u2019 U.S. Const, amend. XIV, \u00a7 1. The equal protection requirement \u2018does not take from the States all power of classification,\u2019 but \u2018keeps governmental decision-makers from treating differently persons who are in all relevant respects alike.\u2019 To succeed on an equal protection claim, [plaintiff] \u2018must first demonstrate that [it] has been treated differently from others with whom [it] is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.\u2019 If [it] makes this showing, \u2018the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.\u2019 To state an equal protection claim, [plaintiff] must plead sufficient facts to satisfy each requirement[.]\u201d\nGood Hope Hosp., Inc. v. N.C. Dep\u2019t of Health & Human Servs., 174 N.C. App. 266, 274, 620 S.E.2d 873, 880-81 (2005) (quoting Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002)).\nPlaintiffs do not assert that a higher scrutiny is applicable here, and we accordingly apply a rational basis standard. Here, there is no genuine issue of material fact that (1) plaintiffs were intentionally treated unequally by the Town compared to similarly situated entities, and (2) there is no rational basis for the Town\u2019s disparate treatment. Plaintiffs paid higher fees than several of their counterparts, and when the APSFO was repealed, plaintiffs were singled out to continue paying fees even though future subdivision lot owners would not have to pay the fees. By the language of Condition 17, the Town purposely imposed the fees to satisfy its ordinance, which we have already concluded to be beyond the Town\u2019s statutory authority. Given that these facts are not in dispute and the Town has otherwise failed to demonstrate a triable issue, the trial court was correct in granting plaintiffs summary judgment. This assignment of error is overruled.\nVIII. Attorneys\u2019 Fees\nThe Town of Cary finally argues that the imposition of attorneys\u2019 fees pursuant to 42 U.S.C. \u00a7 1988(b) was improper, because the trial court erred in concluding that the Town of Cary violated plaintiffs\u2019 substantive due process and equal protection rights. We disagree.\nSection 1988(b) provides that \u201c[i]n any action or proceeding to enforce a provision of [section 1983,] . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney\u2019s fee as part of the costs[.]\u201d 42 U.S.C. \u00a7 1988(b). Because the award of attorneys\u2019 fees under section 1988 is discretionary, we review such awards for an abuse of discretion. Shaw v. Jones, 81 N.C. App. 486, 489-90, 344 S.E.2d 321, 324 (1986).\nWe have already concluded that the trial court did not err in concluding that plaintiffs\u2019 constitutional rights were violated by the Town. Since the Town offers no other argument as to how the trial court abused its discretion in awarding the fees, we hold that the award was properly granted under section 1988. This assignment of error is overruled.\nCONCLUSION\nBased on the foregoing, the orders of the trial court are\nAffirmed.\nChief Judge MARTIN concurs.\nJudge JACKSON dissents with separate opinion.\n. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]\n42 U.S.C. \u00a7 1983 (emphasis added).\n. Sec. 19. Law of the land; equal protection of the laws.\nNo person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.\nN.C. Const, art. I, \u00a7 19.\n. We believe that this point in time would be the point of accrual because Condition 17 was not part of the chain of title. The builder-plaintiffs in this case would not therefore have been on notice of the fee at the time the lots were purchased.\n. There seems to be an inherent tension with this proposition and the holding of Power Mfg. Co. v. Saunders, 274 U.S. 490, 71 L. Ed. 1165 (1927). In Saunders, a foreign corporation was not estopped from challenging the constitutionality of a statute controlling venue for foreign corporations, even though the corporation accepted the benefit of doing business within the forum state. Saunders, 274 U.S. at 496-97, 71 L. Ed. at 1169. In finding that the foreign corporation\u2019s challenge was not estopped, the United States Supreme Court stated:\nThe contention advanced by counsel for the plaintiff that the defendant impliedly assented to the venue provisions is answered and refuted by repeated decisions holding that a foreign corporation by seeking and obtaining permission to do business in a State does not thereby become obligated to comply with or estopped from objecting to any provision in the state statutes which is in conflict with the Constitution of the United States. . . . [T]he case of W. W. Cargill Co. v. Minnesota, 180 U.S. 452, 468, [45 L. Ed. 619] . . . held that \u2018the acceptance of a license, in whatever form, will not impose upon the licensee an obligation to respect or to comply with any provisions of the statute . . . that are repugnant to the Constitution of the United States.\u2019 \u201d\nId. (citations omitted). For the reasons below, however, we do not reach this issue in this case.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." }, { "text": "JACKSON, Judge,\ndissenting.\nAlthough I agree with the reasoning in the majority opinion, because I believe this appeal is interlocutory, I would vote to dismiss.\nAs the majority notes, in most circumstances, an interlocutory order is not immediately appealable. Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, our legislature has created two exceptions to this general rule: (1) pursuant to Rule 54(b), \u201cif the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal\u201d and (2) \u201c \u2018if the trial court\u2019s decision deprives the appellant of a substantial right which would be lost absent immediate review.\u2019 \u201d Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996) (quoting N.C. Dep\u2019t of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995)).\nAlthough 54(b) provides the trial court with the authority to certify a case for immediate appeal, this Court has emphasized that the trial court\u2019s certification of an appeal pursuant to Rule 54(b) does not deprive this Court of its role in determining whether the appeal is properly before us or not. As this Court has explained, \u201cthe trial court\u2019s determination that there is no just reason to delay the appeal, while accorded great deference, cannot bind the appellate courts because ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court.\u201d First Atl. Mgmt., Corp. v. Dunlea Realty, Co., 131 N.C. App. 242, 247, 507 S.E.2d 56, 60 (1998) (citations and quotation marks omitted). See, e.g., Cagle v. Teachy, 111 N.C. App. 244, 247, 431 S.E.2d 801, 803 (1993) (\u201c[A] trial court cannot by denominating its decision a \u2018final judgment\u2019 confer appeal status under Rule 54(b) if its ruling is not indeed such a judgment.\u201d (citation omitted)). Therefore, it is incumbent upon the parties also to articulate how they will be deprived of a substantial right in the absence of immediate review when the matter is not before us as the result of a final judgment. See First Atl. Mgmt., Corp., 131 N.C. App. at 247, 507 S.E.2d at 60.\nHere, the Town of Cary has done no more than make- the bare assertion that this matter has been \u201ccertified by the trial court for review in this Court pursuant to N.C.R. Civ. P. 54(b)\u201d and accordingly, jurisdiction is proper. Without more, I must vote to dismiss, although I agree with the reasoning set forth in the majority opinion.", "type": "dissent", "author": "JACKSON, Judge," } ], "attorneys": [ "K&L Gates, LLP, by William J. Brian, Jr., and Nathaniel G. Parker, for plaintiff appellees.", "The Brough Law Firm, by Michael B. Brough; and Womble Carlyle Sandridge & Rice, PLLC, by Burley B. Mitchell, Jr., John C. Cooke, and Michael T. Henry, for defendant appellant.", "J. .Michael Carpenter and Starn Danchi & Donaldson, PLLC, by Paul Siam, for Amicus Curiae Home Builders Association of Raleigh-Wake County and the North Carolina Home Builders Association." ], "corrections": "", "head_matter": "AMWARD HOMES, INC., ANGE CONSTRUCTION COMPANY, BLUEPOINT HOMES, INC., HOMESCAPE BUILDING COMPANY, IMPACT DESIGN-BUILD, INC., JOHN LEGGETT AND COMPANY, POYTHRESS CONSTRUCTION COMPANY, INC., POYTHRESS HOMES, INC., WARDSON CONSTRUCTION, INC., WHG, INC. d/b/a TIMBERLINE BUILDERS, AND ZEIGLER & COMPANY, Plaintiffs v. TOWN OF CARY, a body politic and corporate, Defendant TRADITION AT STONEWATER I, LP, Plaintiff-Intervenor v. TOWN OF CARY, a body politic and corporate, Defendant to claim of Plaintiff-Intervenor\nNo. COA09-923\n(Filed 3 August 2010)\n1. Jurisdiction\u2014 subject matter jurisdiction \u2014 school impact fees \u2014 claims not moot \u2014 plaintiffs had standing\nThe trial court and the Court of Appeals had subject matter jurisdiction over a case involving school impact fees charged to plaintiff homebuilders by the Town of Cary pursuant to the Adequate Public School Facilities ordinance.\n2. Cities and Towns\u2014 actions ultra vires \u2014 school impact fees\nThe trial court did not err in granting summary judgment in favor of plaintiff homebuilders on their claims to recover school impact fees paid to the Town of Cary because the Town had no authority to enact or enforce the Adequate Public School Facilities ordinance or Condition 17 of the development proposal which outlined the fees.\n3. Statutes of Limitation and Eepose\u2014 claims not barred\u2014 recovery of school impact fees\nPlaintiff homebuilders\u2019 claims to recover school impact fees paid to the Town of Cary pursuant to the Adequate Public School Facilities ordinance were not barred by the two-month statute of limitations contained in N.C.G.S. \u00a7 160A-364.1; the ten-year statute of limitations in N.C.G.S. \u00a7 1-56 applied to plaintiffs\u2019 claims under Article I, section 19 of the North Carolina Constitution.\n4. Estoppel\u2014 no benefit received \u2014 claims not barred\nPlaintiffs\u2019 claims to recover school impact fees paid to the Town of Cary were not barred by the doctrine of estoppel. Plaintiffs were forced to participate in the Town\u2019s illegal custom and practice of imposing and accepting the fees and the Town failed to show that \u2022 plaintiffs received any benefit under the Adequate Public School Facilities ordinance or Condition 17 of the approved development proposal.\n5. Constitutional Law\u2014 substantive due process \u2014 summary judgment proper\nThe trial court correctly concluded that plaintiff home-builders were entitled to summary judgment on their substantive due process claims concerning school impact fees paid to the Town of Cary. Plaintiffs demonstrated a fundamental property interest protected by the Fourteenth Amendment of the North Carolina Constitution and proved that they were deprived of this property interest by government action that had no rational relation to a valid state objective.\n6. Constitutional Law\u2014 equal protection \u2014 summary judgment proper\nThe trial court did not err in granting plaintiff homebuilders summary judgment on their claims to recover school impact fees paid to the Town of Cary as the Town violated plaintiffs\u2019 equal protection rights. Plaintiffs were intentionally treated unequally by the Town compared to similarly situated entities and there was no rational basis for the Town\u2019s disparate treatment.\n7. Attorney Fees\u2014 substantive due process and equal protection claims \u2014 award proper\nThe trial court did not err by ordering the Town of Cary to pay plaintiff home builders\u2019 attorney fees pursuant to 42 U.S.C. \u00a7 1988(b) in an action concerning school impact fees paid to the Town. The Town violated plaintiffs\u2019 substantive due process and equal protection rights.\nJACKSON, Judge, dissenting.\nAppeal by defendant from orders entered 5 March 2009, 1 April 2009, and 2 April 2009 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 9 February 2010.\nK&L Gates, LLP, by William J. Brian, Jr., and Nathaniel G. Parker, for plaintiff appellees.\nThe Brough Law Firm, by Michael B. Brough; and Womble Carlyle Sandridge & Rice, PLLC, by Burley B. Mitchell, Jr., John C. Cooke, and Michael T. Henry, for defendant appellant.\nJ. .Michael Carpenter and Starn Danchi & Donaldson, PLLC, by Paul Siam, for Amicus Curiae Home Builders Association of Raleigh-Wake County and the North Carolina Home Builders Association." }, "file_name": "0038-01", "first_page_order": 62, "last_page_order": 91 }