Quality Built Homes Inc. v. Town of Carthage

IN THE SUPREME COURT OF NORTH CAROLINA

No. 315PA15-2

Filed 11 May 2018

QUALITY BUILT HOMES INCORPORATED and STAFFORD LAND COMPANY,
INC.
v.

TOWN OF CARTHAGE

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished decision of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 436

(2016), reversing and remanding an order allowing summary judgment entered on 17

October 2014 by Judge James M. Webb in Superior Court, Moore County, after the

Supreme Court of North Carolina remanded the Court of Appeals’ prior decision in

this case, Quality Built Homes Inc. v. Town of Carthage, 242 N.C. App. 521, 776

S.E.2d 897 (2015) (unpublished). Heard in the Supreme Court on 9 January 2018.

Ferguson, Hayes, Hawkins & DeMay, PLLC, by James R. DeMay; and
Scarbrough & Scarbrough, PLLC, by John F. Scarbrough, Madeline J.
Trilling, and James E. Scarbrough, for plaintiff-appellees.

Cranfill Sumner & Hartzog LLP, by Susan K. Burkhart, for defendant-
appellant.

Ellis & Winters LLP, by Stephen D. Feldman, Steven A. Scoggan, and Paul M.
Cox, for North Carolina Water Quality Association and the Municipalities of
Apex, Concord, Holly Springs, Jacksonville, Kannapolis, Surf City, and
Winston-Salem; and F. Paul Calamita for North Carolina Water Quality
Association, amici curiae.

Erwin, Bishop, Capitano & Moss, P.A., by J. Daniel Bishop and Joseph W.
Moss, Jr., for Union County, amicus curiae.
 QUALITY BUILT HOMES INC. V. TOWN OF CARTHAGE

Opinion of the Court

ERVIN, Justice.

The issues before us in this case involve when the claims that plaintiffs Quality

Built Homes Incorporated and Stafford Land Company, Inc., have asserted against

defendant Town of Carthage accrued and whether plaintiffs’ claims are barred by the

one-, two-, -three-, or ten-year statute of limitations and the doctrine of estoppel by

the acceptance of benefits. After careful review of the claims asserted against the

Town in plaintiffs’ complaint and the applicable law, we conclude that plaintiffs’

cause of action accrued upon the Town’s exaction of the unlawful impact fees against

plaintiffs and that plaintiffs’ claims against the Town arise from a liability created

by statute that is subject to the three-year statute of limitations contained in N.C.G.S.

§ 1-52(2). In addition, we further conclude that the Town’s assertion that plaintiffs’

claims are barred by the doctrine of estoppel by the acceptance of benefits lacks merit.

As a result, we affirm the Court of Appeals’ decision, in part; reverse the Court of

Appeals’ decision, in part; and remand this case to the Court of Appeals for further

remand to the Superior Court, Moore County, for further proceedings not inconsistent

with this opinion.

The Town operates a public water and sewer system for the benefit of its

residents. In 2003, the Town adopted two ordinances providing for the assessment

of water and sewer impact fees known, respectively, as Ordinance § 51.076 and

Ordinance § 51.097. According to the Town, the required impact fees were to “be used

to cover the cost of expanding the water [and sewer] system[s],” with fee payments

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Opinion of the Court

due and owing at the time of final plat approval or at the time at which the payment

of a separate fee intended to cover the cost of connecting end-user customers to the

Town’s water and sewer system was made. As of the time that this action was

commenced, Quality Built Homes had paid the Town $66,000.00 in water and sewer

impact fees and placed an additional $4,000.00 into an escrow account following the

filing of its complaint1 and Stafford Land had paid the Town $57,000.00 in water and

sewer impact fees.

On 28 October 2013, plaintiffs filed a complaint against the Town in the

Superior Court, Moore County. In their complaint, plaintiffs asked the trial court “to

determine whether [the Town] has authority to enact and enforce portions of its

ordinance regulating the collection of [the water and sewer] impact fees” and sought

to recover the unlawful impact fees that they had paid to the Town, plus interest, as

authorized by N.C.G.S. § 160A-363(e), and attorneys’ fees, as authorized by N.C.G.S.

§ 6-21.7. On 23 June 2014, plaintiffs amended their complaint to include claims

asserting that the challenged impact fees violated the equal protection and due

process provisions of the North Carolina Constitution, resulted in unreasonable

discrimination in violation of N.C.G.S. § 160A-314, and contravened the Town’s

1 In spite of the requirement that the water and sewer impact fees be paid at the time
of final plat approval, Quality Built Homes was allowed to pay these fees at the time that it
received individual development permits. After the filing of plaintiffs’ complaint, an
additional $4,000.00 in impact fee payments made by Quality Built Homes was placed into
escrow by agreement of the parties, with the final disposition of this amount to be determined
at the conclusion of the present litigation.

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Opinion of the Court

impact fee ordinances. On 29 August 2014, the Town filed an answer to plaintiffs’

amended complaint in which it denied the material allegations of the amended

complaint and asserted a number of affirmative defenses, including claims that the

challenged impact fees had adequate statutory authorization and that plaintiffs’

claims were barred by the applicable statute of limitations and the doctrine of waiver

or estoppel through the acceptance of benefits. After the parties filed cross-motions

for summary judgment, the trial court entered an order on 17 October 2014 granting

summary judgment in favor of the Town. Plaintiffs noted an appeal from the trial

court’s order to the Court of Appeals.

On 4 August 2015, the Court of Appeals filed an unpublished opinion holding

that the Town had “acted within the authority conferred by North Carolina General

Statutes, sections 160A[-]312, -313, and -314 to collect a water and sewer impact fee.”

Quality Built Homes Inc. v. Town of Carthage, 242 N.C. App. 521, 776 S.E.2d 897,

2015 WL 4620404, at *5 (2015) (unpublished). On 5 November 2015, this Court

allowed discretionary review of the Court of Appeals’ decision. On 19 August 2016,

this Court filed an opinion reversing the Court of Appeals’ decision on the grounds

that the challenged impact fee ordinances were unlawful. Quality Built Homes, Inc.

v. Town of Carthage, 369 N.C. 15, 22, 789 S.E.2d 454, 459 (2016). More specifically,

we determined that, “[w]hile the enabling statutes allow [the Town] to charge for the

contemporaneous use of its water and sewer systems, the plain language of the Public

Enterprise Statutes clearly fails to empower the Town to impose impact fees for

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Opinion of the Court

future services.” Id. at 19-20, 789 S.E.2d at 458. In light of this determination, we

remanded this case to the Court of Appeals in order to allow it to address whether

plaintiffs’ claims were barred by the applicable statute of limitations or the doctrine

of estoppel by the acceptance of benefits.2 Id. at 18 n.2, 22, 789 S.E.2d at 457 n.2,

459.

On 30 December 2016, the Court of Appeals filed an unpublished opinion

holding that plaintiffs’ claims against the Town were subject to the ten-year statute

of limitations set out in N.C.G.S. § 1-56, Quality Built Homes Inc. v. Town of

Carthage, __ N.C. App. __, 795 S.E.2d 436, 2016 WL 7984235, at *2 (2016)

(unpublished), on the grounds that “North Carolina courts have held that ultra vires

claims for charging fees without statutory authority have a ten-year statute of

limitations,” id. (quoting Tommy Davis Constr. Inc. v. Cape Fear Pub. Util. Auth., No.

7:13-CV-2-H, 2014 WL 3345043, at *3 (E.D.N.C. July 8, 2014), aff’d, 807 F.3d 62

(2015)). As a result, given that plaintiffs had paid the challenged impact fees within

ten years before filing their complaint in this case, the Court of Appeals held that

plaintiffs’ claims were not time-barred. Id. at *3. In addition, the Court of Appeals

held that plaintiffs were not estopped from pursuing their claims against the Town

on the grounds that “[o]ne cannot be estopped by accepting that which he would be

legally entitled to receive in any event” and that the General Assembly “clearly

2Although we had initially granted discretionary review with respect to these issues,
we dismissed the discretionary review petition relating to them as having been improvidently
granted. Quality Built Homes Inc., 369 N.C. at 22, 789 S.E.2d at 459.

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Opinion of the Court

contemplated that even if a party received a ‘benefit’ . . . in exchange for paying an

illegal fee, the party should still receive a recovery of that fee.” Id. (first alteration in

original) (first quoting Beck v. Beck, 175 N.C. App. 519, 525, 624 S.E.2d 411, 415

(2006); and then citing N.C.G.S. § 160A-363(e)). As a result, the Court of Appeals

reversed the trial court’s order and remanded this case to the Superior Court, Moore

County, for the purpose of “mak[ing] the appropriate findings of fact as to (1) whether

defendant abused its discretion making attorneys’ fee mandatory and (2) a reasonable

attorneys’ fees award to plaintiff, whether discretionary or mandatory.” Id. at *4. We

granted the Town’s request for discretionary review of the Court of Appeals’ remand

decision.

In seeking relief from the Court of Appeals’ decision before this Court, the

Town argues that the Court of Appeals had ignored the fundamental legal principle

that a claim accrues when the right to maintain an action arises, which, in this case,

was the date upon which the challenged ordinances became effective, citing Williams

v. Blue Cross Blue Shield of North Carolina, 357 N.C. 170, 177-78, 581 S.E.2d 415,

423 (2003). According to the Town, the “continuing wrong” doctrine has no

application in this case given that, unlike the situation at issue in Williams, “the

[p]laintiffs, in this case, who are in the business of developing property, knew at the

moment the Ordinances were passed, that they would be subject to the Ordinances’

requirement of the payment of water and sewer impact fees.” (Emphasis omitted.)

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Opinion of the Court

In addition, the Town argued that the “continuing wrong” doctrine has no application

to ultra vires claims.

In the Town’s view, the applicable statute of limitations for purposes of this

case is the one-year statute of limitations set out in 1-54(10) and N.C.G.S. §§ 160A-

364.1(b), which governs challenges to the validity of zoning and development

ordinances. According to N.C.G.S. § 160A-364.1(b), which applies to actions

“challenging the validity of any zoning or unified development ordinance or any

provision thereof adopted under [Article 19, Planning and Regulation of

Development],” N.C.G.S. § 160A-364.1(b) (2017), and N.C.G.S. § 1-54(10), which

applies to “[a]ctions contesting the validity of any zoning or unified development

ordinance or any provision thereof adopted under . . . Part 3 of Article 19 of Chapter

160A of the General Statutes,” id. § 1-54(10) (2017), the applicable statute of

limitations is one year. The Town contends that N.C.G.S. § 160A-363(e) should be

harmonized and construed with N.C.G.S. § 160A-364.1(b) given that they address the

same subject matter and that the two statutory provisions establish that a claim for

“refund for an illegal exaction in the development process is subject to the one-year

statute of limitations in N.C.G.S. § 160A-364.1(b),” citing, inter alia, In re M.I.W., 365

N.C. 374, 382, 722 S.E.2d 469, 475 (2012).

In the alternative, the Town asserts that the two-year statute of limitations

set out in N.C.G.S. § 1-53(1) operates to bar plaintiffs’ claims. More specifically, the

Town notes that N.C.G.S. § 1-53(1) provides that “[a]n action against a local unit of

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Opinion of the Court

government upon a contract, obligation or liability arising out of a contract, express

or implied,” must be filed within two years. N.C.G.S. § 1-53(1) (2017). The Town

contends that the two-year statute of limitations set out in N.C.G.S. § 1-53(1) applies

in this case because plaintiffs’ claims are tantamount to a common law claim for

breach of an implied contract given that a municipality’s proprietary actions mirror

those of a business, citing Town of Spring Hope v. Bissette, 305 N.C. 248, 250-51, 287

S.E.2d 851, 853 (1982) (stating that “[t]his rate-making function [pursuant to

N.C.G.S. § 160A-314(a)] is a proprietary rather than a governmental one, limited only

by statute or contractual agreement”). As a result, the Town contends that plaintiffs’

claims, which arise from the operation of the Town’s public enterprise system, should

be subject to the two-year statute of limitations set out in N.C.G.S. § 1-53(1).

In the event that plaintiffs’ claims are not subject to the two-year statute of

limitations set out in N.C.G.S. § 1-53(1), the Town contends that the applicable

statute of limitations is the three-year statute of limitations set out in N.C.G.S. § 1-

52(2) applicable to “a liability created by statute,” quoting N.C.G.S. § 1-52(2) (2017).

According to the Town, plaintiffs’ claims are subject to the three-year statute of

limitations set out in N.C.G.S. § 1-52(2) because the Town’s liability is authorized by

N.C.G.S. § 160A-174(b) and arises from the enactment of a pair of ultra vires

ordinances. In the alternative, the Town argues that, if the applicable statute of

limitations is not found in N.C.G.S. § 1-52(2), this case is governed by N.C.G.S. § 1-

52(5), which applies to claims “[f]or criminal conversation, or for any other injury to

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Opinion of the Court

the person or rights of another, not arising on contract,” quoting N.C.G.S. § 1-52(5)

(2017).3

According to the Town, this Court has only applied the “catch-all” ten-year

statute of limitations in cases involving resulting or constructive trusts, first citing

Orr v. Calvert, 365 N.C. 320, 720 S.E.2d 387 (2011); then citing in the following

sequence Cline v. Cline, 297 N.C. 336, 255 S.E.2d 399 (1979); Jarrett v. Green, 230

N.C. 104, 52 S.E.2d 223 (1949); Bowen v. Darden, 241 N.C. 11, 84 S.E.2d 289 (1954);

Sandlin v. Weaver, 240 N.C. 703, 83 S.E.2d 806 (1954); and Teachey v. Gurley, 214

N.C. 288, 199 S.E. 83 (1938). Although the Town concedes that, even though “there

may be a claim that is so unique that it bears no resemblance to any claim presently

envisioned by our legislature, thereby falling outside all of the multitudinous statutes

of limitations included in Chapter I, Subchapter II, Article 5, of the General Statutes,

this is not such a case.” (Emphases omitted.)

Finally, the Town argues that plaintiffs’ claims are barred by the doctrine of

estoppel by the acceptance of benefits. According to the Town, “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.” Convent of the Sisters of

3 In its reply brief, the Town also suggested that the three-year statute of limitations
applicable to claims “for the recovery of an unlawful fee, charge, or exaction collected by a
county, municipality, or other unit of local government for water or sewer service or water
and sewer service” set out in N.C.G.S. § 1-52(15), which had been enacted by the General
Assembly after the filing of the Town’s initial brief, constituted a clarifying amendment to
N.C.G.S. § 1-52 and barred the maintenance of plaintiffs’ claims. Act of June 29, 2017, ch.
138, secs. 10(b), 11, 2017-4 N.C. Adv. Legis. Serv. 174, 180 (LexisNexis).

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St. Joseph v. City of Winston-Salem, 243 N.C. 316, 324, 90 S.E.2d 879, 885 (1956).

Allowing plaintiffs to recover the water and sewer impact fees that they have paid to

the Town would permit them to receive “an unfair windfall” given that plaintiffs’

developments have received needed permits and had access to the Town’s water and

sewer system for a period in excess of ten years and given that plaintiffs collected the

impact fee amounts from their own customers as part of the price paid to purchase

land in plaintiffs’ developments. As a result, for all of these reasons, the Town

contends that the Court of Appeals erred by remanding this case to the trial court for

the entry of an order awarding attorneys’ fees pursuant to N.C.G.S. § 6-21.7.

Plaintiffs, on the other hand, argue that the General Assembly’s decision to

rewrite N.C.G.S. § 1-52(15) to provide a three-year statute of limitations for claims

“for the recovery of an unlawful fee, charge, or exaction collected by a county,

municipality, or other unit of local government for water or sewer service or water

and sewer service,” Act of June 29, 2017, ch. 138, sec. 10(a), 2017-4 N.C. Adv. Legis.

Serv. 174, 180 (LexisNexis), narrows the statute of limitations dispute in this case to

whether the rewrite of N.C.G.S.§ 1-52(15) is a “clarifying amendment,” which serves

to bar plaintiffs’ claims, or an “altering amendment” inapplicable to plaintiffs’ claims,

rendering the “catch-all” ten-year statute of limitations set out in N.C.G.S. § 1-56

applicable to this case. In plaintiffs’ view, an amendment is deemed “altering” if it

changes the substance of the original law, citing Ray v. North Carolina Department

of Transportation, 366 N.C. 1, 9, 727 S.E.2d 675, 681 (2012), with the presumption

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being “that the legislature intended to change the original act by creating a new right

or withdrawing any existing one,” quoting Childers v. Parker’s Inc., 274 N.C. 256,

260, 162 S.E.2d 481, 483 (1968). Plaintiff contends, in view of the fact that N.C.G.S.

§ 1-52(15) required no clarification, that the subsequent amendment created an

addition to, rather than a clarification of, the existing statute, rendering plaintiffs’

claims subject to the “catch-all” ten-year statute of limitations, first citing Amward

Homes Inc. v. Town of Cary, 206 N.C. App. 38, 59, 698 S.E.2d 404, 419 (2010)

(applying the ten-year statute of limitations set out in N.C.G.S. § 1-56 to a claim for

the recovery of unlawful school impact fees), a’ffd per curiam by an equally divided

court, 365 N.C. 305, 716 S.E.2d 849 (2011), then citing, inter alia, Point South

Properties LLC v. Cape Fear Public Utility Authority, 243 N.C. App. 508, 515, 778

S.E.2d 284, 289 (2015) (applying the ten-year statute of limitations set out in N.C.G.S.

§ 1-56 to a claim for the recovery of unlawful water and sewer impact fees).

In addition, plaintiffs contend that the 2017 amendment to N.C.G.S. § 1-52(15)

does not apply to this case because accrued and pending causes of action constitute

vested rights, which are constitutionally protected, first citing Rhyne v. K-Mart Corp.,

358 N.C. 160, 176, 594 S.E.2d 1, 12 (2004) (explaining that, “[w]ithout question,

vested rights of action are property, just as tangible things are property”), then citing,

inter alia, Bolick v. American Barmag Corp., 306 N.C. 364, 371, 293 S.E.2d 415, 420

(1982) (explaining that, “[w]hen a statute would have the effect of destroying a vested

right if it were applied retroactively, it will be viewed as operating prospectively

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only”). As a result, plaintiffs argue that the effect of retroactively applying the 2017

amendment to N.C.G.S. § 1-52(15) would deprive them of their vested property rights.

In addition, plaintiffs contend that the one-year statute of limitations set out

in N.C.G.S. §§ 160A-364.1 and 1-54(10) has no application in this case because

plaintiffs’ claims do not stem from a zoning or unified development ordinance adopted

pursuant to Article 19 of Chapter 160A of the North Carolina General Statutes.

Instead, plaintiffs have challenged the validity of the water and sewer impact fees

that have been charged by the Town pursuant to the public enterprise authority

granted by Article 16 of Chapter 160A of the North Carolina General Statutes.

Similarly, the two-year statute of limitations set out in N.C.G.S. § 1-53(1) has no

application in this case because plaintiffs’ claims rest upon the exaction of unlawful

impact fees rather than upon the breach of an implied contract, citing Point Southern

Properties, 243 N.C. App. at 515, 778 S.E.2d at 289. Moreover, plaintiffs claim that

the three-year statute of limitations set out in N.C.G.S. § 1-52(2) does not apply in

this case because plaintiffs’ claims do not rest upon a liability created by statute.

Plaintiffs argue that, instead of arising under N.C.G.S. § 160A-363(e), the Town’s

liability for the refund of unlawfully exacted impact fees is derived from preexisting

common law principles, citing Smith Chapel Baptist Church v. City of Durham, 350

N.C. 805, 517 S.E.2d 874 (1999) (requiring the refunding of unlawfully exacted

stormwater impact fees paid prior to the adoption of N.C.G.S. § 153A-363(e)); and

Durham Land Owners Ass’n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200

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(requiring the refunding of unlawfully exacted school impact fees paid prior to the

adoption of N.C.G.S. § 153A-324(b), the analogous statute for counties) disc. rev.

denied, 360 N.C. 532, 633 S.E.2d 678 (2006)). Finally, plaintiffs argue that their

claims are not barred by the three-year statute of limitations set out in N.C.G.S. § 1-

52(5) because their claims do not arise from an “injury to the person or rights of

another, not arising on contract.”

Plaintiffs assert that their claims against the Town accrued at the time of the

Town’s exaction of the unlawful water and sewer impact fees rather than upon the

adoption of the related impact fee ordinances. The Town’s argument to the contrary

is flawed, in plaintiffs’ opinion, because the impact fees that had been exacted from

them had been adopted annually rather than in the relevant ordinances. Simply put,

since a “plaintiff’s injury is the wrong entitling plaintiff to commence a cause of

action,” quoting Black v. Littlejohn, 312 N.C. 626, 639, 325 S.E.2d 469, 478 (1985),

plaintiffs sustained no injury until the Town actually exacted the unlawful impact

fees.

Finally, plaintiffs argue that a decision to accept the Town’s estoppel by the

acceptance of benefits argument would encourage the Town to engage in unlawful

conduct and unjustly enrich the Town. Plaintiffs contend that they received no

“benefit” from the payment of the unlawful impact fees given that their payments

were mandatory, citing Virginia-Carolina Peanut Co. v. Atlantic Coast Line Railroad

Co., 166 N.C. 62, 74, 82 S.E. 1, 5 (1914) (explaining that, in the event that a party’s

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“only alternative [is] to submit to an illegal exaction or discontinue its business,”

“[m]oney paid, or rather value parted with, under such pressure has never been

regarded as a voluntary act”). As a result, plaintiffs assert that the Court of Appeals’

decision should be affirmed.

Statutes of limitation are intended to afford security
against stale claims. With the passage of time, memories
fade or fail altogether, witnesses die or move away, [and]
evidence is lost or destroyed; and it is for these reasons, and
others, that statutes of limitations are inflexible and
unyielding and operate without regard to the merits of a
cause of action.

Estrada v. Burnham, 316 N.C. 318, 327, 341 S.E.2d 538, 544 (1986) (citation omitted),

superseded by statute, N.C.G.S. § 1A-1, Rule 11(a) (Cum. Supp. 1988), on other

grounds as stated in Turner v. Duke Univ., 325 N.C. 152, 163-64, 381 S.E.2d 706, 712-

13 (1989). “[S]tatutes of limitation are procedural, not substantive, and determine

not whether an injury has occurred, but whether a party can obtain a remedy for that

injury.” Christie v. Hartley Constr., Inc., 367 N.C. 534, 538, 766 S.E.2d 283, 286

(2014) (citation omitted). “[T]he statute of limitations begins to run once a cause of

action accrues,” McCutchen v. McCutchen, 360 N.C. 280, 283, 624 S.E.2d 620, 623

(2006) (citation omitted), with “[a] cause of action [having] accrue[d] . . . whenever a

party becomes liable to an action,” Matthieu v. Piedmont Nat. Gas Co., 269 N.C. 212,

215, 152 S.E.2d 336, 339 (1967); see also Register v. White, 358 N.C. 691, 697, 599

S.E.2d 549, 554 (2004) (stating that “a statutory limitations period on a cause of

action necessarily cannot begin to run before a party acquires a right to maintain a

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lawsuit”). “The accrual of the cause of action must therefore be reckoned from the

time when the first injury was sustained.” Mast v. Sapp, 140 N.C. 533, 537, 53 S.E.

350, 351 (1906).

As we understand the record, the first issue related to the statute of limitations

that must be addressed is identifying the point in time at which plaintiffs’ claims

against the Town accrued. In Williams, this Court addressed the validity of an

Orange County ordinance enacted pursuant to legislation adopted by the General

Assembly “authoriz[ing] transfer by the [Equal Employment Opportunity

Commission] to Orange County of employment discrimination complaints filed with

it originating in the county and transfer by [the Department of Housing and Urban

Development] to Orange County of housing discrimination complaints arising in the

county.” 357 N.C. at 174-75, 581 S.E.2d at 420. After the plaintiff filed a complaint

seeking relief for allegedly unlawful discrimination in violation of the ordinance, the

defendant filed an answer that included a counterclaim seeking a declaration “that

the enabling legislation and the Ordinance violated Article II, Section 24(1)(j) of the

North Carolina Constitution.” Id. at 177, 581 S.E.2d at 421. In holding that the

defendant’s challenge to the validity of the ordinance in question was not barred by

the applicable statute of limitations, id. at 178, 581 S.E.2d at 422, predicated upon

the plaintiffs’ theory that “the time period for [the defendant’s] filing of a

constitutional challenge to the Ordinance or the enabling legislation began to run on

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the date the enabling legislation or the Ordinance became effective,” id. at 178, 581

S.E.2d at 422, we explained that

[w]hen the enabling legislation and the Ordinance were
first enacted, [the defendant] was just another employer in
Orange County to which these new laws applied; any harm
to [the defendant] was both prospective and speculative.
The alleged wrongs to [the defendant] became apparent
only upon enforcement of the Ordinance through the filing
of lawsuits and proceedings against [the defendant].

Id. at 179, 581 S.E.2d at 423. In other words, this Court held in Williams that the

defendant’s challenge to the validity of the ordinance in question accrued when the

ordinance was enforced against that party rather than at the time of initial

enactment in reliance upon the “continuing wrong” doctrine. Id. at 180-81, 581 S.E.2d

at 424.

In determining whether a plaintiff is entitled to challenge the validity of an

ordinance as subjecting the plaintiff to what is tantamount to a continuing harm, “we

examine [the] case under a test that considers ‘[t]he particular policies of the statute

of limitations in question, as well as the nature of the wrongful conduct and harm

alleged.’ ” Id. at 179, 581 S.E.2d at 423 (second alteration in original) (quoting Cooper

v. United States, 442 F.2d 908, 912 (7th Cir. 1971)). For that reason, the reviewing

court “must examine the wrong alleged by [the plaintiff] to determine if the purported

violation is the result of ‘continual unlawful acts,’ each of which restarts the running

of the statute of limitations, or if the alleged wrong is instead merely the ‘continual

ill effects from an original violation.’ ” Id. at 179, 581 S.E.2d at 423 (quoting Ward v.

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Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)). “[I]f the same alleged violation was

committed at the time of each act, then the limitations period begins anew with each

violation . . . .” Id. at 179-80, 581 S.E.2d at 423 (alterations in original) (quoting Perez

v. Laredo Junior Coll., 706 F.2d 731, 733 (5th Cir. 1983), cert. denied, 464 U.S. 1042,

104 S. Ct. 708, 79 L. Ed. 2d 172 (1984)). Although the “continuing wrong” doctrine

has been treated, in some instances, as an “exception” to the usual rules governing

the operation of statutes of limitations, such a description of the doctrine in question

is a misnomer given that the “continuing wrong” doctrine does nothing more than

provide that the applicable limitations period starts anew in the event that an

allegedly unlawful act is repeated.

A classic example of the “continuing wrong” doctrine can be seen in Sample v.

John L. Roper Lumber Co., in which the plaintiffs alleged that the defendant had

repeatedly trespassed upon their property by unlawfully harvesting timber there. As

this Court stated in Sample, “every wrong invasion of plaintiffs’ property amounted

to a distinct, separate trespass, day by day, and for any and all such trespasses

coming within the three years the defendant is responsible.” 150 N.C. 161, 166, 63

S.E. 731, 732 (1909). Thus, consistent with the principle espoused in Williams, 357

N.C. at 179, 581 S.E.2d at 423 (quoting Ward, 650 F. 2d at 1147), the defendant’s

repeated trespasses onto the plaintiffs’ property constituted “ ‘continual unlawful

acts,’ each of which restart[ed] the running of the statute of limitations.” See also

Lightner v. City of Raleigh, 206 N.C. 496, 503-05 174 S.E.2d 272, 276-78 (1934)

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(applying the continuing wrong doctrine to a situation involving repeated discharges

of sewage onto the plaintiffs’ property). Similarly, this Court applied the “continuing

wrong” doctrine in Faulkenbury v. Teachers’ & State Employees’ Retirement System

of North Carolina, in which the plaintiffs alleged that the State had unlawfully

reduced their disability retirement payments. 345 N.C. 683, 690, 483 S.E.2d 422, 426

(1997). According to this Court, “the reductions in payments under the new systems

were deficiencies which have continued to the present time,” so that “the plaintiffs

[could] pursue claims for underpayments for three years before they commenced

actions,” id. at 695, 483 S.E.2d at 429-30, given that “the limitations period beg[an]

anew,” Williams, 357 N.C. at 179-80, 581 S.E.2d at 423 (quoting Perez, 706 F.2d at

733), with the making of each reduced payment.

On the other hand, in Jewell v. Price, the plaintiffs alleged that the defendant

building contractor had constructed a home for them that contained a negligently

installed a furnace. The Court concluded that the “defendant’s negligent breach of

the legal duty . . . occurred on November 15, 1958, when he delivered to [the plaintiffs]

a house with a furnace lacking a draft regulator and . . . having been installed too

close to combustible joists.” 264 N.C. 459, 462, 142 S.E.2d 1, 4 (1965). “[A]lthough

[the plaintiffs] had no knowledge of the invasion [of their rights] until . . . . [t]he fire

which destroyed their home on January 18, 1959, ‘the whole injury’ resulted

proximately from [the] defendant’s original breach of duty” “arising out of his

contractual relation with [the] plaintiffs . . . when he delivered to them a house with

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Opinion of the Court

a [negligently installed] the furnace.” Id. at 462, 142 S.E.2d at 4. As a result, since

the alleged violation of the plaintiffs’ legal rights was “entire and complete,” Sample,

150 N.C. at 164, 63 S.E. at 732, when the house containing the negligently installed

furnace was delivered to the plaintiffs, there was no repeated violation of their rights

sufficient to restart the running of the applicable statute of limitations at the time

that the fire occurred.

The essence of plaintiffs’ claim against the Town is that the Town has exacted

unlawful impact fee payments from them. In other words, “the nature of the wrongful

conduct and harm alleged,” Williams, 357 N.C. at 179, 581 S.E.2d at 423 (quoting

Cooper, 442 F.2d at 912), in plaintiffs’ complaint rests upon the Town’s collection of

water and sewer impact fees rather than the adoption of the impact fee ordinances.

As was the case in Williams, plaintiffs did not sustain any direct injury at the time

that the challenged impact fee ordinances were adopted. Instead, plaintiffs sustained

the injury upon which their claims rest when plaintiffs were required to make impact

fee payments in order to obtain approval for their development proposals. As a result,

since plaintiffs’ injury occurred when plaintiffs made the required impact fee

payments to the Town, we conclude that Quality Built Homes’ claims against the

Town accrued on various dates between 1 May 2006 through 21 January 2009 and

that Stafford Land’s claims against the Town accrued on various dates between 20

December 2005 through 30 June 2009.

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Opinion of the Court

In identifying the statute of limitations that applies to plaintiffs’ claims against

the Town, we begin by noting that, according to well-established North Carolina law,

“[w]here one of two statutes might apply to the same situation, the statute which

deals more directly and specifically with the situation controls over the statute of

more general applicability,” Fowler v. Valencourt, 334 N.C. 345, 349, 435 S.E.2d 530,

533 (1993) (quoting Trs. of Rowan Tech. Coll. v. J. Hyatt Hammond Assocs., 313 N.C.

230, 238, 328 S.E.2d 274, 279 (1985)), and that, “[w]hen two statutes apparently

overlap, it is well established that the statute special and particular shall control over

the statute general in nature, even if the general statute is more recent, unless it

clearly appears that the legislature intended the general statute to control,” id. at

349, 435 S.E.2d at 534 (quoting Trs. of Rowan Tech., 313 N.C. at 238, 328 S.E.2d at

279). According to N.C.G.S. § 1-52(15), as amended by the 2017 General Assembly,

an action “[f]or the recovery of taxes paid as provided in [N.C.]G.S. [§] 105-381 or for

the recovery of an unlawful fee, charge, or exaction collected by a county,

municipality, or other unit of local government for water or sewer service or water

and sewer service” must be filed within three years from the date upon which the

plaintiff’s claim accrued. N.C.G.S. § 1-52(15) (2017). Although the 2017 version of

N.C.G.S. § 1-52(15) “deals more directly and specifically” with the nature of the claims

that plaintiffs have asserted against the Town, Fowler, 334 N.C. at 349, 435 S.E.2d

at 533, and, although the General Assembly specifically described the 2017 addition

to N.C.G.S. § 1-52(15) as “a clarifying amendment” that “has retroactive effect and

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applies to claims accrued or pending prior to . . . the date” that the amended version

of N.C.G.S. § 1-52(15) became law, Ch. 138, sec. 11, 2017-4 N.C. Adv. Legis. Serv. at

180 (LexisNexis), we need not decide whether the amended version of N.C.G.S. § 1-

52(15) is entitled to retroactive effect, despite plaintiffs’ contention that they have a

vested property right in their claims against the Town, given our determination that

plaintiffs’ claims against the Town are governed by N.C.G.S. § 1-52(2), which applies

to “a liability created by statute, either state or federal.”

The gravamen of our previous decision in this case was that “the Public

Enterprise Statutes . . . clearly and unambiguously fail to give [the Town] the

essential prospective charging power necessary to assess impact fees” and that, since

“the legislature alone controls the extension of municipal authority, the impact fee

ordinances on their face exceed the powers delegated to the Town by the General

Assembly.” Quality Built Homes, 369 N.C. at 22, 789 S.E.2d at 459. As a result, the

essence of our earlier decision in this case was that the Town had acted unlawfully

by assessing a water and sewer impact fee not authorized by N.C.G.S. § 160A-314(a)

(2015) (providing that “[a] city may establish and revise . . . rents, rates, fees, charges,

and penalties for the use of or the services furnished by any public enterprise”). In

light of that fact, we have little difficulty concluding that the claim recognized in our

prior decision in this case was, when viewed realistically, one resting upon an alleged

statutory violation that resulted in the exaction of an unlawful payment which

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plaintiffs had an inherent right to recoup.4 Although the Court of Appeals reached a

different conclusion in Point South Properties based upon the fact that N.C.G.S. §

162A-88 did not provide an explicit statutory right to seek recovery of the challenged

impact fees separate and apart from the statutory provisions governing the

defendant’s authority to charge the challenged impact fees, we do not believe that the

applicability of the three-year statute of limitations set out in N.C.G.S. § 1-52(2)

hinges upon such a fine parsing of the relevant statutory language.5 At an absolute

minimum, none of our prior decisions impose the limitation upon the applicability of

the three-year statute of limitations set out in N.C.G.S. § 1-52(2) upon which the

Court of Appeals’ decisions in Point South Properties and this case depend. See Town

of Morganton v. Avery, 179 N.C. 551, 552, 103 S.E. 138, 139 (1920) (applying the

three-year statute of limitations for liability created by statute to an action to enforce

a lien allegedly arising from a tax assessment on the grounds that, “[w]ithout the

creative force of the statute, the charge upon the land could not be made”);

Shackelford v. Staton, 117 N.C. 73, 75, 23 S.E. 101, 102 (1895) (applying the three-

year statute of limitations for liability created by statute in a case arising from the

4 In light of this determination, we need not decide whether the monetary payments
that the Town exacted from plaintiffs constituted “a tax, fee, or monetary contribution for
development or a development permit not specifically authorized by law.” N.C.G.S. § 160A-
363(e) (2017).

5Given that determination, we overrule the Court of Appeals’ decision with respect to
the applicability of the three-year statute of limitations set out in N.C.G.S. § 1-52(2) in Point
South Properties.

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failure of a Clerk of Superior Court to properly index a judgment). As a result, we

conclude that the three-year statute of limitations for liabilities set out in N.C.G.S. §

1-52(2)6 applies in this case.7 Moreover, given that plaintiffs’ claims against the Town

accrued between 20 December 2005 and 30 June 2009 and given that plaintiffs filed

their complaint against the Town more than three years after the Town exacted its

last impact fee payment from plaintiffs, plaintiffs’ claims against the Town8 are

barred by the three-year statute of limitations set out in N.C.G.S. § 1-52(2).9

Finally, we reject the Town’s contention that plaintiffs’ claims are barred by

the doctrine of estoppel by the acceptance of benefits. In our opinion, Convent of the

6 In light of our determination that the three-year statute of limitations set out in
N.C.G.S. § 1-52(2) applies in this instance, we need not address the issue of the applicability
of the three-year statute of limitations set out in N.C.G.S. § 1-52(5).

7 Although the Town has asserted that a number of shorter limitations periods should
be deemed applicable in this instance, we do not find its arguments to that effect persuasive.
For example, we are unable to conclude that the one-year statute of limitations set out in
N.C.G.S. §§ 160A-364.1 and 1-54(10) has any application to this case because plaintiffs’
claims do not rest upon a challenge to the validity of the Town’s zoning or unified
development ordinances. Similarly, we are unable to conclude that the two-year statute of
limitations set out in N.C.G.S. § 1-53(1) has any application to this case because plaintiffs’
claims rest upon a charge for water or sewer service imposed in violation of N.C.G.S. § 160A-
314(a) rather than upon breach of an implied contract.

8 In determining that plaintiffs’ claims against the Town are time-barred by the three-
year statute of limitations set out in N.C.G.S. § 1-52(2), we note that the trial court, with the
consent of the parties, allowed Quality Built Homes to place $4,000.00 in impact fee payments
in escrow. The proper disposition of these monies is addressed at the conclusion of this
opinion.

9As a result of the fact that the three-year statute of limitations set out in N.C.G.S. §
1-52(2) applies to this case, the Court of Appeals necessarily erred in determining that
plaintiffs’ claims were subject to the ten-year statute of limitations set out in N.C.G.S. § 1-
56.

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Opinion of the Court

Sisters of Saint Joseph v. City of Winston-Salem has no application to the proper

resolution of this case. In Convent, the plaintiff’s predecessor in interest obtained a

special use permit in accordance with the applicable zoning ordinance and received

authorization to establish an otherwise prohibited elementary school pursuant to

certain agreed-upon conditions set out in the applicable permit. 243 N.C. at 325, 90

S.E.2d at 885. Although we held in Convent that, “by accepting the benefits of the

provisions of the zoning ordinance” the original purchaser “waived any right he might

have had to contest the validity of the ordinance,” id. at 325, 90 S.E.2d at 885, the

fact that the plaintiff’s predecessor obtained the right to engage in an otherwise

prohibited activity pursuant to the special use permit does not govern the outcome in

this case. Here, plaintiffs do not appear to have received any benefit from the

payment of the challenged water and sewer impact fees that they would not have

otherwise been entitled to receive. As we held in Virginia-Carolina Peanut Co., in an

instance in which “[t]he only alternative was to submit to an illegal exaction or

discontinue its business,” the payment of money “under such pressure[ ] has never

been regarded as a voluntary act.” 166 N.C. at 74-75, 82 S.E. at 5 (quoting Robertson

v. Frank Brothers Co., 132 U.S. 17, 24, 10 S. Ct. 5,7, 33 L. Ed. 236, 239 (1889)). Thus,

we affirm the Court of Appeals’ conclusion that plaintiffs’ claims against the Town

are not barred by the doctrine of estoppel by the acceptance of benefits. As a result,

for the reasons set forth above, the Court of Appeals’ decision is affirmed, in part, and

reversed, in part, and this case is remanded to the Court of Appeals for further

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Opinion of the Court

remand to the Superior Court, Moore County, for further proceedings not inconsistent

with this opinion, including the entry of an order determining the proper disposition

of the water and sewer impact fees that Quality Built Homes paid into escrow in

accordance with the consent order and addressing any other outstanding issues.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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