all right the last case we're going to hear today is tommy davis construction versus cape fear public utility authority and mr wilson whenever you're ready may please the court my name is jeremy wilson along with my walk partner rob say hello we represent the defendants and the of how in this matter if you're a public utility authority and you hanover county this case is about sewer impact fees that were charge by keep your pulp utility authorities right assessor new hanover county water and sewer district which i'll just refer to as the districts the plaintiff the residential home builder contends these fees were beyond the district statutory authority and also infringed within the jurisdiction regardless of whether or not the property would immediately receive sewer services from the districts now these were in fact these were tap fees they weren't user charges they were connection these they were impact fees and the rationale behind them was that they were that that he is it sounds to me like that be as user well two points your honor first user fees the way that they seem to be typically defined or connect are associated with actual use so like your monthly charge for instance you and the construction is completed so right i guess i'm distinguishing piece from monthly service water sewer charges they would receive in the mail for a bill in the mail or whatever else are actual use of the services in out of water use those sorts of things that's how i'm defining services furnished or to be furnished and our contention is that based on the planning documents in the record based on the plans going back to nine hundred seventy six and in many plans from both the city of the county and the destroyed during this period in question th properties at issue in this case were within the planet like forty years that reasonable evidence of intention of the words a plan all to mentally is for the party to serve everybody more definite around the time of these charges and if you look at the if you look at the studies in the plane and rid of up to provide services to this area there's a two thousand and six master plan update it's in the record your honor the references aqua's being the standard the record is certainly full of references to that area that that depends on the building of the capacity in the relationship with iraq when whether or not and when those services might be in the future we don't believe your honor that we don't have a definite date your honor and we don't could send a there is a definite date we could send of that's not the standard we don't believe that under north carolina law or under the application to the federal constitutional questions that we have to point to a date sorry we believe that when you're a local governments in your planning you're building out infrastructure and you're charging impact these now some and these fees that are by definition associated with a definite use the you have the flexibility to charge those these if the proper use or within the jurisdiction and there are plenty of documents the steps being taken to increase capacity and to take steps t actually provide the services of some point now for these properties were in our jurisdiction and maybe that's an extreme example but certainly if there were no references whatsoever to us taking steps and and considering these properties in our long term plans that would be a different situation on the record but i don't believe that is a fair reflection of the record or your honour's we don't believe that you get to those questions because we believe that there are serious statutes statue of limitations and latches problems with this case and  frankly those were not delved into in great detail with the dish report opinion a ten year limitations period was applied in this case citing the am war holmes decision which is a north carolina court of appeals decision that was a equally divided north carolina supreme court's because it was affirmed by an equally divided north carolina supreme court is without presidential value and further your honour's this is really the only case that i can find if you look at the notes and decision so if you look at the north carolina supreme court a supreme court's decision on appeal it says on its face affirmed by know what it said but i it looks to me like they're referring even though they still think referred to the court of appeals of the intermediate court's decision they're referring to the fact that because it's equally divided their decision has no presidential value which i think is the general law there is there some principle in north carolina that the  intermediate court's opinion loses all its value because it was affirmed by equally divided court that's correct your honor it remains in place but it remains in place without presidential value so it's it's it's the way these are treated in north carolina your honor i believe it's reference on the face of the more i read it your are you correct but i don't understand how the intermediate court's decision all of a sudden loses  space supreme court said about that you know media opinion is so that it was going to stand but it was not going to stand with presidential value so it's persuasive but it no longer is binding in north carolina it's something that can be looked at like an unpublished decision i think it's a fair analogy to provide some guidance but not to let me go back to this other point is this  s mcneil versus harnett county if your honor they they require these fees under section eighty eight as user fees for services to be furnished they call these user fees which if that's right that's right appalachian and it looks like it might be supported by the statute then it's connected with the use of the system that is receiving water and s either at the time or to be furnished and this it looks to me like there was no intent manifested time they applied for the becker subdivision that it point in terms of the same facts and all point it's just the way they report that you use your feet and i think that's because of the specific facts that make no your honor in that case there was going to be a user fee associated with connection to the system the problem was that harnett county at that time didn't have the funds to build out the system hadn't been doing something maybe like charging impact these into a general assessment so what they did is they waived user fees for folks that wanted to pay or early go ahead and pay those charges so it's sort of more pure fees into impact these by allowing customers to pay early and not have to pay later so really was like a user faith that was being earlier and i  financing or maintenance or improvements for existing customers and that isn't the case that's that's why we sites are making you know but we certainly recognize that there are distinctions between our case and i think that's where the user fee which comes from your honor a supposed to be exactly that is supposed to be a catch all provision and if you look at am or it is sort of shows you the analysis that you go through you have to really review all the other limitations period in that chapter in the north carolina general statutes try to find one that applies first and there is a second one in the heart of their claim seems to be that we need to provide services sometime immediately after charging these fees and didn't do so if it's a time maybe i think their notion is being as connected with the provision of service and we don't believe that's the set of facts on this record in this case your honor this is not something like school impact these in the am war decision where there is no statutory authority whatsoever for school impact these that's a lot of the question is if the authority went beyond its are in this statute and it's altered virus that cause of action is not by reason of stature we believe that when you can point to a specific statute that it is and there's some good he regarding whether or not a teacher had your status there search provisions that need to be followed under the law and were carolina to determine if a teacher s tenure those weren't followed to declaratory judgment action was brought really it's that i believe there might have been some due process implications and there was well those found to be a liability created by statute because the standard essentially was set by the statute what you have to do is there under the statutory language another case in north carolina the state  stewart case applied that in the context of a breach to produce your duty with officers and directors that standards in a statute doesn't create a private right of action in the statute because you're pulling the standard from a statute that it is a liability created by statute in your honour's you're looking for a specific statute that has that type of language in it look no further than their fourth claim for relief in this action which is pursuant to section one fifty three a dash three twenty four which specifically says that if a county charges  a legal fee or tax something beyond its authority and that's to be refunded as in there's to be six percent interest rate on if somebody applied or a march permit marched down the city and the city said we'll give you the something to the cause of actions created by this that you i do not because i think you're dealing with a different factual situation than you have here here you're dealing with specific properties just trying to create a little more scream that it but it's still the same right so that goes to maybe some notional comfort that we weren't so cope with that isn't still doesn't mean you're in the statute but increase i think it does under those facts if you're marching down the road you're never going to need sewer services or certainly not a piece of that i pathetic when i get there some of these cases are about wind drawn and you can recreate an extreme situation where clearly it went up on you clearly crossed the line to become ultra vires but we don't believe that's the case here we have some back up statutes of limitation we also believe there's a real provide that they had no ability to provide and still ten years after they first assess these fees they still have not provided i will first begin with some of the questions regarding the statute limitations  remains highly persuasive being that the court of appeals they went through that analysis of all of the statutes and they did not find any that applied to a due process issue with ultra  various in particular impact so they applied that catch all to in your state's limitations now the only reason that court of appeals decision when up to the north carolina supreme court was because judge jackson in that case she agreed with that supreme court decision did not have any analysis within it and if you look at the briefs to shinar they did not even argue that in your stash limitations issue that was not an issue that was even address statute if you look at all of their cases where they've cited this particular stacks limitations argument both in north carolina and outside of north carolina if you remove the statute from those cases you remove the liability they have no claim in this case if you remove the statute that they claim creates the liability once it's to a dash eighty eight you remove that statute our case doesn't go away it actually becomes stronger go into the merits of the case there there is no plan in any of the eighteen hundred or two thousand pages of documents that are all in the record that established that they had any cut that taken any concrete steps that they taken any plans it taken any infrastructure in any any environmental studies any analysis of how much is it going to cost there's nothing in in those well your honor in the in their reasonable exercise of their authority under one sixty to eighty eight which provides for them to assess fee for services furnished or to be furnished not might be furniture could be furnished but what will be for that's a mandate now they do not have as there is not a timeframe within that statute but still judge power point out the district court level you have to have there's a reasonable you have to exercise that authority reason and for them to say that they've been they've had these plants is one nine hundred seventy six and they haven't quite got around to it yet if we would argue is is unreasonable as a matter of law but they did not have any intent to do it they didn't have any plans to do in addition to the planning you also have to have the ability to carry out this point and in this case all the areas in back woods and the surrounding providing these services they are public utility privately owned and they're regulated by the north carolina utilities commission now utilities commission when they applied found that assert they had to as did the district as does your public utility authority but one eminent domain or cannot take from another imminent domain so even if they did somehow lan to provide services they had no ability they had no imminent doma ability to take over aqua's infrastructure to use aqua's infrastructure to provide services so there's an even if they went through the one you have the counterproductive possibility that they could run a parallel line that's right you know they could do they could spend millions and millions of dollars to run a pipe right next aqua's pipe but even if they did that they don't have the statutory authority under article one of one six somebody else in there under under chapter once under chapter one sixty two a article one the the public utility authority the case for public utility thorney public utility thore is not allowed to utility commission i do not know how that proceed or would work your honor all i can see is the statute in the statute says that they are not allowed to go in there i don't know who makes that determination if it's the courts or the utilities commission but that germination has to be made that they can't go in if they and if the problem the possibility exists that aqua leaves in abandons and they go back into into and they do provide services at some point in the future they have the they still have the authority to assist impact fees or any other fees at that time if this court finds in uphold the district court and those funds are refunded they're not prejudiced because if the next year or the next ten years or twenty fifty five when they're planning documents they hook up to becker woods and somehow they have to hook up to the woods at that time they can go ahead assist the impact  so there's not prejudice in in that case so they don't have the ability they don't have the planning and they don't have any of the imminent domain authority to to provide th argument which statue limitations i do encourage you to look at those cases are going to liability created by statute i do think many of those are applicable but in the ones without the direct damages reliability provisions including some from other jerks some from other jurisdictions deal specifically with taxes and what the latches argument your honor is that they wait over five years to bring this lawsuit and they don't have a reason for waiting over five years they were on notice when this happened to be believed these charge now you're saying because they went beyond the five years of their part by a doc and the acquittal and i'm wondering how you propose those operate together you still you do have cases in north carolina your honor where somebody can be within the statute want ations but if the facts are such that they've waited in such a way that's not justified and there's prejudice to the defendant i can people aren't i think the notion of latches was an equitable dock where somebody counts back to the contrary since then the already done them collect that the i respectfully disagree there are based on the cases in north carolina there are several cases where somebody waited usually there about two years coincidentally to bring a lawsuit to challenge government action and the prejudice is that the government's already moved or with taking steps based on that action entering into contracts spending money initiating policy there's a there's a case specifically dealing with or it does prejudice you in the language also just which changing positions and it does prejudice you when you spend that money that money's been spent that's in the record so build out the capacity of the south side wastewater treatment plant taking these folks into consideration under north carolina law with regard to local governments in a make sense because it's not just to private parties you get too far down the tracks on enter into contracts any public money making charges with other people and  file suit you come in and say hold it i would have been able to defend this it's much better if you filed earlier and you say you can't bring this it doesn't lack that there's some something problematical if you hit the elements the ethical considerations why you can limit shorter than the statute of limitations especially i think in this case where it's not clear what limitations period applies and lakshman applied that's we have to assume that ten well my purpose of art ok there is a statute of limitations and that they had protection under the statute limitations you're saying they lose that protect because of latches and the question is what equitable conduct are they imputed with to cause them to lose their the benefit of their stature limitation well first of all this is a catch all provision which i think is important distinction the legislatures not reach down said specifically you have this mount time for this i book your points challenging give me a hypothetical i don't want to get into the marriage you keep wanting to slide into the marriage issue on i hypothetically is you have a automobile accident three year statute of limitations and the plaintiff waits for two years and ten months and file suit and the defendant comes in and said hold it i've changed my position decisions have been made circumstances are different such that we're being prejudiced and there are cases directly analogous to this type of situation in north carolina applying to ultra vires claims associate with local government conduct so injunctions declaratory actions and constitutional claims are for circuit cases as well where where i know none of the you haven't answered my question is how do you propose to administer those two stocks because they both can apply concurrently or are you can have a limitations that's the default but if the circumstances are such where latches under equity shall limit the action based on the unique facts or circumstances of the case it's and that we're both doctrine you can have the appalachians doctrine limit the stache limitations period so i think on your hypothetical if there were i do still think i may go into the merits of your hypothetical as well but i don't think under that scenario of a hard time applying latches by i think you certainly could have a situation well actually let somebody shorter than three years it just