Epcon Homestead

• Court: Court of Appeals of North Carolina
• Decided: July 16, 2024
• Docket: 23-1048
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1048

Filed 16 July 2024

Orange County, No. 21 CVS 726

EPCON HOMESTEAD, LLC, Plaintiff,

v.

TOWN OF CHAPEL HILL, Defendant.

Appeal by Plaintiff from order entered 25 July 2023 by Judge R. Allen Baddour

Jr. in Orange County Superior Court. Heard in the Court of Appeals 1 May 2024.

Morningstar Law Group, by Jeffrey L. Roether & William J. Brian, Jr., for Plaintiff-Appellant.

Hartzog Law Group, by Dan M. Hartzog, Jr., Katherine Barber-Jones & Rachel G. Posey, for Defendant-Appellee.

CARPENTER, Judge.

Epcon Homestead, LLC (“Plaintiff”) appeals from the trial court’s order

granting the Town of Chapel Hill’s (the “Town’s”) motion to dismiss. On appeal,

Plaintiff argues the trial court incorrectly concluded that Plaintiff’s complaint was

time barred. After careful review, we disagree with Plaintiff. Accordingly, we affirm

the trial court’s order.

I. Factual & Procedural Background EPCON HOMESTEAD, LLC V. TOWN OF CHAPEL HILL

Opinion of the Court

This case involves real property, zoning, and statutes of limitation.1 On 24

October 2019, Plaintiff, a homebuilder, sued the Town. The Town removed the case

to the United States District Court for the Middle District of North Carolina. After

concluding that Plaintiff’s federal causes of action were time barred, the Middle

District declined to exercise jurisdiction over Plaintiff’s case. On 26 May 2021, the

Middle District dismissed Plaintiff’s complaint without prejudice, allowing Plaintiff

to refile in state court. On 20 March 2023, the United States Court of Appeals for the

Fourth Circuit affirmed.

Plaintiff refiled its complaint in Orange County Superior Court, and the Town

moved to dismiss under Rule 12(b)(6). Again, the Town argued that Plaintiff’s

complaint was time barred. Plaintiff’s complaint and its attachments show the

following.

The disputed real property (the “Property”) is an eighteen-acre piece of land

located in Chapel Hill, North Carolina. Plaintiff began purchasing the Property

piecemeal in 2015. As required by section 3.10 of the Town’s Land Use Management

Ordinance (“LUMO”), Plaintiff applied for a special use permit (the “SUP”) from the

Town in order to develop the Property into sixty-three residential units. On 27

October 2014, before Plaintiff began purchasing the Property, the Town approved the

1 “Although the singular phrase is statute of limitations, the plural tends to be statutes of

limitation—that is, the -s gets dropped from limitations.” BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 843 (3d ed. 2011).

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SUP.

The Town adopted section 3.10 of LUMO “to create and preserve affordable

housing opportunities” and “to provide a structure for cooperative participation by

the public and private sectors in the production of affordable housing.” Chapel Hill,

N.C., Land Use Management Ordinance § 3.10 (2003). Section 3.10 applies to

development projects that construct five or more single-family residential units

within the Town’s jurisdiction. Id. § 3.10.1(a). Section 3.10 requires developers to

dedicate fifteen percent of their proposed construction to “affordable housing” units.

Id. § 3.10.2(a). As an alternative to the affordable-housing allocation, however,

developers may pay an approved fee. Id. § 3.10.3(d)(4).

Rather than dedicating fifteen percent of the Property to “affordable housing,”

Plaintiff offered to pay a $803,250 fee (the “Fee”) to the Town. Through the SUP, the

Town approved the Fee. Plaintiff decided to pay the Fee periodically. Plaintiff made

its first Fee payment on 5 July 2017 and its final Fee payment on 20 March 2019.

Plaintiff’s complaint lists several causes of action. In its first cause of action,

Plaintiff requests a declaration that the Fee is ultra vires and therefore unlawful. In

its second and third causes of action, Plaintiff requests a declaration that the Fee is

unconstitutional. In its fourth cause of action, Plaintiff seeks a refund of the Fee,

alleging that it is statutorily entitled to a return of Fee payments because the Fee is

unlawful. In its fifth cause of action, Plaintiff seeks a refund of the Fee, alleging a

common-law entitlement to a return of Fee payments because the Fee is unlawful. In

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its sixth cause of action, to the extent there is no other remedy, Plaintiff requests

damages through a Corum action.2 In its final cause of action, Plaintiff requests

attorneys’ fees.

On 25 July 2023, the trial court concluded that Plaintiff’s complaint was time

barred and granted the Town’s motion to dismiss. On 17 August 2023, Plaintiff

timely filed notice of appeal.

II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(1) (2023).

III. Issue

The issue on appeal is whether the trial court erred by dismissing Plaintiff’s

complaint.

IV. Analysis

A. Standard of Review

We review the grant of a motion to dismiss under Rule 12(b)(6) de novo.

Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013). Under a de novo

review, this Court “‘considers the matter anew and freely substitutes its own

judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33,

669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd. P’ship, 356 N.C.

2 “A Corum claim allows a plaintiff to recover compensation for a violation of a state

constitutional right for which there is either no common law or statutory remedy, or when the common law or statutory remedy that would be available is inaccessible to the plaintiff.” Taylor v. Wake Cty., 258 N.C. App. 178, 183, 811 S.E.2d 648, 652 (2018).

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642, 647, 576 S.E.2d 316, 319 (2003)).

A trial court must dismiss a complaint if it fails to “state a claim upon which

relief can be granted.” N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2023). “Dismissal is

proper ‘when one of the following three conditions is satisfied: (1) the complaint on its

face reveals that no law supports the plaintiff’s claim; (2) the complaint on its face

reveals the absence of facts sufficient to make a good claim; or (3) the complaint

discloses some fact that necessarily defeats the plaintiff’s claim.’” Burgin v. Owen,

181 N.C. App. 511, 512, 640 S.E.2d 427, 428–29 (2007) (quoting Wood v. Guilford Cty.,

355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002)). At the 12(b)(6) stage, we must treat

the plaintiff’s allegations as true and read the complaint liberally in the plaintiff’s

favor. Lynn v. Overlook Dev., 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991).

B. Statutes of Limitation

Here, the trial court dismissed Plaintiff’s complaint under Rule 12(b)(6)

because Plaintiff filed its complaint outside of the applicable statute of limitations.

Statutes of limitation “bar claims filed outside their temporal boundaries regardless

of whether the claims have merit.” Morris v. Rodeberg, 385 N.C. 405, 409, 895 S.E.2d

328, 331 (2023). Statutes of limitation “represent the legislature’s determination of

the point at which the right of a party to pursue a claim must yield to competing

interests, such as the unfairness of requiring the opposing party to defend against

stale allegations.” Id. at 409, 895 S.E.2d at 331 (citing Ord. of R.R. Telegraphers v.

Ry. Express Agency, Inc., 321 U.S. 342, 348–49, 64 S. Ct. 582, 586, 88 L. Ed. 788, 792–

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93 (1944)).

1. When North Carolina Statutes of Limitation Begin to Run

A statute of limitations begins to run on the “accrual date.” See id. at 409, 895

S.E.2d at 331. The accrual date is the date when the injured party can sue. Raftery

v. Wm. C. Vick Constr. Co., 291 N.C. 180, 183, 230 S.E.2d 405, 407 (1976). A party

can sue when it sustains an injury to a “legally protected interest.” See Arendas v.

N.C. High Sch. Athletic Ass’n, 217 N.C. App. 172, 174, 718 S.E.2d 198, 199 (2011).

But we have competing language concerning what accrues: The North Carolina

Supreme Court has said that a statute of limitations begins to run when a cause of

action accrues, and it has said a statute of limitations begins to run when a claim

accrues. Compare Raftery, 291 N.C. at 183–84, 230 S.E.2d at 407 (stating that a

statute of limitations begins to run when a “cause of action” accrues) with Morris, 385

N.C. at 409, 895 S.E.2d at 331 (stating that a statute of limitations begins to run

when a “claim” accrues).

Although seemingly synonymous, claims and causes of action are distinct. A

cause of action is a legal theory; a claim is not. See Bockweg v. Anderson, 333 N.C.

486, 494, 428 S.E.2d 157, 162–63 (1993). A claim may support a cause of action.

Indeed, a claim may support multiple causes of action. But a cause of action, a legal

theory, is not a claim: A cause of action “is the vehicle for pursuing a claim.” St.

Augustine School v. Underly, 78 F.4th 349, 352 (7th Cir. 2023). Recently, the United

States Court of Appeals for the Seventh Circuit precisely explained the difference

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between a claim and a cause of action:

[There is a] distinction between a legal claim and a theory supporting relief (what the common law used to call a cause of action). A claim is the set of operative facts that produce an assertable right in court and create an entitlement to a remedy. A theory of relief is the vehicle for pursuing the claim; it may be based on any type of legal source, whether a constitution, statute, precedent, or administrative law. The specific theory dictates what the plaintiff needs to prove to prevail on a claim and what relief may be available. One lawsuit may raise multiple claims, and each claim may be supported by multiple theories.

Id. In other words, a claim is a pattern of allegations that may, or may not, support

a cause of action. See id.

Our res judicata caselaw illustrates the distinction between a claim and a

cause of action. We often refer to res judicata as “claim preclusion.” See Whitacre

P’ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004). Res judicata

prevents relitigation of a claim. Id. at 15, 591 S.E.2d at 880 (citing Thomas M.

McInnis & Assocs., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986)). When

a party asserts a previously adjudicated claim in a later lawsuit, it is “clear that

subsequent actions which attempt to proceed by asserting a new legal theory or by

seeking a different remedy are prohibited under the principles of res judicata.”

Bockweg, 333 N.C. at 494, 428 S.E.2d at 163.

This case provides a good example of how res judicata works. Plaintiff’s

complaint asserts seven legal theories. Plaintiff could not get a judgment concerning

one theory, then file a subsequent complaint pursuing its other theories. See id. at

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494, 428 S.E.2d at 163. That is because all of Plaintiff’s theories are supported by

one claim: Plaintiff was injured by an application of section 3.10, and section 3.10 is

unlawful.

True, Plaintiff’s causes of action are based on different legal authorities.

Plaintiff’s first, fourth, and seventh causes of action are based on statutory authority;

Plaintiff’s second, third, and sixth causes of action are based on constitutional

authority; and Plaintiff’s fifth cause of action is based on common-law authority. It

is also true that Plaintiff’s different theories could provide different remedies. Some

could provide monetary relief; some could provide injunctive or declaratory relief. But

compounding multiple theories and potential remedies does not create multiple

claims. See St. Augustine School, 78 F.4th at 352.

The distinction between a claim and a cause of action may seem trivial. Often

it will be, as a claim and its corresponding causes of action will typically accrue at the

same time: A claim must support a cause of action in order to provide a remedy, see

id. at 352, and the accrual date is generally the date of the alleged injury, see Arendas,

217 N.C. App. at 174, 718 S.E.2d at 199. So if the timing of the aggregate injury

alleged in the claim aligns with the timing of the injury supporting the cause of action,

the question of whether the accrual date concerns the claim or the cause of action is

immaterial. But there are cases in which the portion of the injury that is necessary

to support a cause of action occurred later in time than the beginning of the claim’s

aggregate injury.

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This is such a case. Plaintiff’s claim is this: Section 3.10 and its corresponding

conditions are unlawful, and Plaintiff was injured because section 3.10, and the

corresponding SUP and Fee, hindered Plaintiff’s ability to develop the Property. On

27 October 2014, through the SUP, Plaintiff agreed to abide by section 3.10 by paying

the Fee instead of building “affordable housing.” We recognize, however, that on 27

October 2014 Plaintiff had yet to pay any of the Fee and could have discontinued

development. Indeed, Plaintiff did not begin purchasing the Property until 2015.

The complaint is vague about when Plaintiff began purchasing the Property:

“[Plaintiff] acquired the real property on which the Courtyards of Homestead Project

was developed through several transactions occurring in 2015 and 2016.” Because

we must construe the complaint liberally in Plaintiff’s favor, we will assume that

Plaintiff first began purchasing the Property on 31 December 2015, the last day of

2015. See Lynn, 328 N.C. at 692, 403 S.E.2d at 471.

At the latest, Plaintiff was fully aware of section 3.10’s requirements after the

Town issued the SUP. And Plaintiff became regulated by section 3.10 when Plaintiff

began purchasing the Property: The Property was controlled by the SUP, which under

section 3.10, conditioned the Property’s development on paying the Fee. So if section

3.10 and the Fee are unlawful, Plaintiff was injured when it began purchasing the

Property. See Arendas, 217 N.C. App. at 174, 718 S.E.2d at 199. Therefore, Plaintiff

could have brought its suit on 31 December 2015; thus its claim began to accrue on

31 December 2015, at the latest. See Raftery, 291 N.C. at 183, 230 S.E.2d at 407.

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But the injury supporting some of Plaintiff’s causes of action is more precise:

specifically, Plaintiff’s fourth and fifth causes of action. Plaintiff’s fourth cause of

action cites statutory authority and demands payment of the Fee; Plaintiff’s fifth

cause of action cites common-law authority and demands repayment of the Fee.

A successful cause of action for a return of unlawful fees requires Plaintiff to

actually pay the Fee; otherwise, the Town has nothing to return. See Amward Homes,

Inc. v. Town of Cary, 206 N.C. App. 38, 56, 698 S.E.2d 404, 417–18 (2010), aff’d by an

equally divided court, 365 N.C. 305, 712 S.E.2d 849 (2011). In other words, Plaintiff

was not sufficiently “injured” to support a cause of action for repayment until Plaintiff

paid the Town. See Arendas, 217 N.C. App. at 174, 718 S.E.2d at 199. It follows,

therefore, that a cause of action seeking repayment accrues when Plaintiff paid the

Town. See Amward Homes, 206 N.C. App. at 56, 698 S.E.2d at 417–18 (stating that

where plaintiffs paid several allegedly unlawful fees, the “cause of action accrued the

first time an application was made for a building permit and the fee was paid to the

Town” (emphasis added)).

Here, Plaintiff made its first Fee payment on 5 July 2017. So Plaintiff’s fourth

and fifth causes of action began to accrue on 5 July 2017. See id. at 56, 698 S.E.2d at

417–18. But as detailed above, Plaintiff’s claim accrued, at the latest, on 31

December 2015. Therefore, this case creates a scenario where the claim and certain

causes of action have different accrual dates. Although there is normally no harm in

using “claim” and “cause of action” interchangeably, this case requires us to honor

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the distinction.

Here, to apply the law precisely, we must determine exactly when applicable

statutes of limitation begin to run: when the claim accrues, or when the cause of

action accrues? Because our caselaw gives contradicting language on this question,

and because statutes of limitation are legislative determinations, we will examine the

relevant statutes to answer the question.

2. Statutes of Limitation Applicable to this Case

Here, Plaintiff argues that a three-year statute of limitations applies and cites

subsection 1-52(2). See N.C. Gen. Stat. § 1-52(2) (2019) (stating that a three-year

statute of limitations applies to “a liability created by statute”). The Town, however,

argues that a one-year statute of limitations applies and cites subsection 160A-

364.1(b). See N.C. Gen. Stat. § 160A-364.1(b) (2019) (stating that “an action

challenging the validity of any zoning or unified development ordinance . . . under

this Article or other applicable law shall be brought within one year of the accrual of

the action”).3

We start with subsection 1-52(2). Like most North Carolina statutes of

limitation, subsection 1-52(2) is in Chapter 1. See, e.g., N.C. Gen. Stat. §§ 1-46 to -

3 “Effective 19 June 2020, the General Assembly consolidated the provisions governing planning and development regulations by local governments into a new Chapter 160D of the General Statutes.” 85’ & Sunny, LLC v. Currituck Cty., 279 N.C. App. 1, 9 n.3, 864 S.E.2d 742, 747 n.3 (2021). Because the former Chapter 160A was in effect at all times relevant to this appeal, we cite that chapter in this opinion.

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55. Chapter 1 states that “[c]ivil actions can only be commenced within the periods

prescribed in this Chapter, after the cause of action has accrued, except where in

special cases a different limitation is prescribed by statute.” Id. § 1-15(a) (emphasis

added). Therefore, if subsection 1-52(2) applies, the statute of limitations begins to

run when the cause of action accrues. See id.

Subsection 160A-364.1(b), however, is less clear:

Except as otherwise provided in subsection (a) of this section, an action challenging the validity of any zoning or unified development ordinance or any provision thereof adopted under this Article or other applicable law shall be brought within one year of the accrual of such action. Such an action accrues when the party bringing such action first has standing to challenge the ordinance.

N.C. Gen. Stat. § 160A-364.1(b).

This statute of limitations begins to run when the “action” accrues. Id. We

read “action” to mean cause of action because in the immediately preceding

subsection, the “cause of action” is what accrues, and the General Assembly seems to

have used “action” as shorthand for cause of action. See id. § 160A-364.1(a). We also

read subsection 160A-364.1(b) against the backdrop of Chapter 1, which houses most

of our statutes of limitation, and in which the General Assembly clearly stated that

accrual applies to causes of action, not claims. See N.C. Gen. Stat. § 1-15.

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Accordingly, the proposed statutes of limitation4 begin to run when the

applicable cause of action accrues. See N.C. Gen. Stat. §§ 1-52(2), 160A-364.1(b). This

requires us to parse through each of Plaintiff’s causes of action and discern accrual

dates for each, rather than discerning one accrual date for the underlying claim.

Although this approach could complicate certain cases, such policy considerations are

for the General Assembly, not the courts. See Loftin v. Sowers, 65 N.C. 251, 255

(1871) (“Our duty is, to administer the law as it is, and not according to our notion as

to how it ought to be.”); see also Page v. Lexington Ins. Co., 177 N.C. App. 246, 250–

51, 628 S.E.2d 427, 430 (2006) (recognizing that, within the same case, different

statutes of limitation may apply to different legal theories, and referring any

proposed changes to this paradigm to the General Assembly).

To summarize: Claims and causes of action are distinct, and the statutes of

limitation proposed in this case begin to run when the applicable causes of action

accrue. To simplify our forthcoming analysis, we will split it into two parts. First,

we will address Plaintiff’s first, second, third, sixth, and seventh causes of action:

These theories all require the same analysis, as none of them necessarily require a

4 Our accrual conclusion is limited to the statutes of limitation found in subsections 1-52(2)

and 160A-364.1(b). Statutes of limitation are legislative decisions, and we recognize that the General Assembly may have decided that other statutes of limitation begin to run when the underlying claim accrues. Although it appears that the General Assembly prefers causes of action to be the starting line for most statutes of limitation, see N.C. Gen. Stat. § 1-15, confirming that appearance is beyond the calling of this case.

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payment to accrue. We will refer to these theories as the “Declaratory Causes.”5 Then

we will separately address Plaintiff’s fourth and fifth causes of action because these

theories necessarily involve payment of the Fee, and as detailed above, they accrue

later than the Declaratory Causes. We will refer to Plaintiff’s fourth and fifth causes

of action as the “Payment Causes.”

Under this rubric, we will discern whether Plaintiff’s causes of action are time

barred. If Plaintiff’s causes of action are time barred, its claim is therefore not one

“upon which relief can be granted,” see N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), and the

trial court did not err by dismissing Plaintiff’s complaint, see Burgin, 181 N.C. App.

at 512, 640 S.E.2d at 428–29.

C. Declaratory Causes

1. Accrual Date

As detailed above, accrual occurs when the injured party can sue, Raftery, 291

N.C. at 183, 230 S.E.2d at 407, and a party can sue when it sustains an injury to a

“legally protected interest,” Arendas, 217 N.C. App. at 174, 718 S.E.2d at 199.

Plaintiff’s Declaratory Causes accrued on 31 December 2015, the same time as

its underlying claim. At the latest, Plaintiff was fully aware of section 3.10’s

requirements after the Town issued the SUP. And Plaintiff became regulated by

5 We recognize that Plaintiff’s sixth and seventh causes of action do not technically request a

“declaration.” Nonetheless, for accrual purposes, these causes of action fit well with the other Declaratory Causes because they require a court to “declare” that the Fee is unlawful without necessarily requiring payment of a fee to accrue.

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section 3.10 when Plaintiff began purchasing the Property: The Property was

controlled by the SUP, which under section 3.10, conditioned the Property’s

development on paying the Fee. So if section 3.10 and the Fee are unlawful, Plaintiff

was injured when it began purchasing the Property. See id. at 174, 718 S.E.2d at

199. Therefore, on 31 December 2015, Plaintiff was “at liberty to sue” and have a

court render a declaratory judgment concerning the lawfulness of section 3.10 and

the Fee. Accordingly, its Declaratory Causes began to accrue on 31 December 2015.

See Raftery, 291 N.C. at 183, 230 S.E.2d at 407.

Plaintiff, however, argues that the continuing-wrong doctrine postponed

accrual. According to Plaintiff, the Fee was unlawful, and the Fee was a continuing

wrong because Plaintiff paid the Fee incrementally. And thus, Plaintiff’s causes of

action did not accrue until its final payment of the Fee. We disagree.

The continuing-wrong doctrine “provide[s] that the applicable limitations

period starts anew in the event that an allegedly unlawful act is repeated.” Quality

Built Homes Inc. v. Town of Carthage, 371 N.C. 60, 70, 813 S.E.2d 218, 226 (2018).

“When this doctrine applies, a statute of limitations does not begin to run until the

violative act ceases.” Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 179,

581 S.E.2d 415, 423 (2003) (citing Va. Hosp. Ass’n v. Baliles, 868 F.2d 653, 663 (4th

Cir. 1989)). “A continuing violation is occasioned by continual unlawful acts, not by

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

Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)).

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The Quality Built Court gave a “classic example” of a continuing wrong:

repeated trespass. 371 N.C. at 70, 813 S.E.2d at 226. When there are multiple

trespasses, each trespass is an independent “violative act.” See id. at 70–71, 813

S.E.2d at 226. So under the continuing-wrong doctrine, the limitations period

restarts after each trespass. See id. at 70–71, 813 S.E.2d at 226.

But Quality Built was not about trespass; it was about a town’s collection of

impact fees. Id. at 61–62, 813 S.E.2d at 221. There, the North Carolina Supreme

Court considered whether the town of Carthage had authority to collect water and

sewer impact fees. Id. at 61–62, 813 S.E.2d at 221. “The essence of plaintiffs’ claim

against the Town [was] that the Town ha[d] exacted unlawful impact fee payments

from them.” Id. at 71, 813 S.E.2d at 227.

The Quality Built plaintiffs “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.” Id. at 62, 813 S.E.2d at 222. Accordingly, the town of

Carthage argued that the continuing-wrong doctrine did not apply, but the Court

rejected the town’s argument. Id. at 71–72, 813 S.E.2d at 227. Rather, the

continuing-wrong doctrine applied because the plaintiffs were injured each time they

“were required to make impact fee payments in order to obtain approval for their

development proposals.” Id. at 72, 813 S.E.2d at 227. Therefore, the claim accrued

each time plaintiffs paid an impact fee. Id. at 72, 813 S.E.2d at 227.

This case is distinguishable from Quality Built. There, the town of Carthage

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required multiple distinct fees, and the Court held that the continuing-wrong doctrine

applied because the builder was “required to make impact fee payments in order to

obtain approval for their development proposals.” Id. at 72, 813 S.E.2d at 227. But

here, the Town did not require multiple fees; it only required one, with an installment

option to accommodate Plaintiff. And here, development approval did not hinge on

separate payments; the Town approved development when it approved the SUP.

In other words, the continuing-wrong doctrine does not apply here because

Plaintiff’s payments were merely a “continual ill effect[] from an original violation”—

application of section 3.10 via the Fee. See Williams, 357 N.C. at 179, 581 S.E.2d at

423. Although separately paid, Plaintiff’s Fee payments were not distinct fees

required by section 3.10. The payments were partial, but the Fee was a fixed total

that Plaintiff chose “in lieu of” building “affordable housing.” The payments were not

“continual unlawful acts” like the multiple fees assessed in Quality Built. See 371

N.C. at 72, 813 S.E.2d at 227. Rather, they were a “continual ill effect[] from an

original violation.” See Williams, 357 N.C. at 179, 581 S.E.2d at 423.

Compare the Fee in this case to repeated trespass, the “classic example” of a

continuing wrong. See Quality Built, 371 N.C. at 70, 813 S.E.2d at 226. When there

are multiple trespasses, there are multiple “violative acts.” So under the continuing-

wrong doctrine, the limitations period restarts after each trespass. See id. at 70–71,

813 S.E.2d at 226.

On the other hand, one extended trespass is just one “violative act”—even if

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the duration of the trespass is quite long. The extension of the trespass may increase

the harm, but an increase in harm does not create multiple “unlawful acts.” See

Williams, 357 N.C. at 179, 581 S.E.2d at 423. Instead, the increase in harm is a

“continual ill effect[] from an original violation.” See id. at 179, 581 S.E.2d at 423.

Section 3.10 and its conditions are one extended “trespass”—not several

repeated ones. The Town began “trespassing” on Plaintiff when it conditioned the

development of the Property. And to be sure, this “trespass” would have continued

even if Plaintiff chose to build affordable housing instead of paying the Fee. That is

because there is just one allegedly unlawful act: the conditions established by the

SUP and section 3.10. As stated above, any additional harm from subsequent Fee

payments is not a distinct unlawful act; subsequent Fee payments are just the

“continual ill effect” of the SUP and section 3.10. See id. at 179, 581 S.E.2d at 423.

Therefore, the continuing-wrong doctrine does not apply to Plaintiff’s

Declaratory Causes. See id. at 179, 581 S.E.2d at 423. Because the continuing-wrong

doctrine does not apply, Plaintiff’s Declaratory Causes accrued on 31 December 2015,

as detailed above. See Raftery, 291 N.C. at 183, 230 S.E.2d at 407.

2. Applicable Statute of Limitations

Now that we know when Plaintiff’s Declaratory Causes accrued, we must

discern whether Plaintiff filed its complaint within the applicable statute of

limitations. Plaintiff argues that a three-year statute of limitations applies, see N.C.

Gen. Stat. § 1-52(2); the Town, however, argues that a one-year statute of limitations

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applies, see N.C. Gen. Stat. § 160A-364.1.

Plaintiff filed the complaint on 24 October 2019, and Plaintiff’s Declaratory

Causes accrued on 31 December 2015, at the latest. See Raftery, 291 N.C. at 183, 230

S.E.2d at 407. So even taking the allegations in Plaintiff’s complaint as true,

Plaintiff’s Declaratory Causes are time barred, regardless of whether the one-year or

three-year statute of limitations applies. See N.C. Gen. Stat. §§ 1-52(2), 160A-

364.1(b). In other words, regardless of which statute of limitations applies, Plaintiff’s

complaint “discloses [a] fact that necessarily defeats” its Declaratory Causes. See

Burgin, 181 N.C. App. at 512, 640 S.E.2d at 428–29.

D. Payment Causes

Now we address the Payment Causes. As detailed above, Plaintiff made its

first Fee payment on 5 July 2017, so the Payment Causes accrued on 5 July 2017.

See Amward Homes, 206 N.C. App. at 56, 698 S.E.2d at 417–18. But again, the crux

of the accrual questions is whether the continuing-wrong doctrine applies. If the

continuing-wrong doctrine applies, then the Payment Causes are not barred under

either the one-year or the three-year statute of limitations, as Plaintiff made the final

Fee payment on 20 March 2019, within one year of filing the complaint. If the

continuing-wrong doctrine does not apply, however, we must determine whether the

one-year or the three-year statute of limitations applies because Plaintiff made the

initial payment more than one year before filing the complaint, but within three years

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of filing the complaint.

Like the Declaratory Causes, the continuing-wrong doctrine does not apply to

the Payment Causes. The Fee payments are not distinct fees simply because they

were separately paid: Although the payments were partial, the Fee was fixed.

Therefore, the Payment Causes accrued after the initial payment, but the subsequent

payments were not “continual unlawful acts”; they were simply a “continual ill effect[]

from an original violation.” See Williams, 357 N.C. at 179, 581 S.E.2d at 423.

Because the continuing-wrong doctrine does not apply to the Payment Causes,

we must now determine which statute of limitations applies to the Payment Causes.

Plaintiff argues that a three-year statute of limitations applies, citing subsection 1-

52(2), and the Town argues that a one-year statute of limitations applies, citing

subsection 160A-364.1(b).

“Where 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.” Trs. of Rowan Tech. Coll. v. J. Hyatt Hammond

Assocs., Inc., 313 N.C. 230, 238, 328 S.E.2d 274, 279 (1985). The “situation” is “not

determined by what either party calls it, but by the issues arising on the pleadings

and by the relief sought.” Hayes v. Ricard, 244 N.C. 313, 302, 93 S.E.2d 540, 545–46

(1956).

Subsection 1-52(2) states that a three-year statute of limitations applies to “a

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liability created by statute.” See N.C. Gen. Stat. § 1-52(2). On the other hand,

subsection 160A-364.1(b) states that a one-year statute of limitations applies to “an

action challenging the validity of any zoning or unified development ordinance.” See

Here, regardless of how Plaintiff labels its causes of action, the “situation” of

this case is clear: Plaintiff is challenging the validity of section 3.10—a “development

ordinance”—which allowed the Town to issue the SUP and demand the Fee. See id.

In pleading its Payment Causes, Plaintiff explicitly requests a return of the Fee by

asserting that the Fee is “unlawful.” Indeed, throughout its complaint, Plaintiff

alleges that section 3.10 and its conditions are unlawful.

Plaintiff argues that subsection 1-52(2) applies because it seeks “a liability

created by statute,” see N.C. Gen. Stat. § 1-52(2), but subsection 160A-364.1(b) “deals

more directly and specifically with” Plaintiff’s Payment Causes, see N.C. Gen. Stat. §

160A-364.1(b). Therefore, subsection 160A-364.1(b) “controls over the statute of more

general applicability,” see Trs. of Rowan Tech., 313 N.C. at 238, 328 S.E.2d at 279,

and Plaintiff’s Payment Causes are subject to a one-year statute of limitations. See

Plaintiff filed its complaint on 24 October 2019, and Plaintiff’s Payment Causes

accrued on 5 July 2017. See Amward, 206 N.C. App. at 56, 698 S.E.2d at 417–18. So

even taking all allegations in Plaintiff’s complaint as true, Plaintiff’s Payment Causes

are time barred. See N.C. Gen. Stat. § 160A-364.1(b).

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In other words, Plaintiff’s complaint “discloses [a] fact that necessarily defeats”

its Payment Causes. See Burgin, 181 N.C. App. at 512, 640 S.E.2d at 428–29. Thus,

all of Plaintiff’s legal theories are timed barred. Accordingly, the trial court did not

err by dismissing Plaintiff’s complaint under Rule 12(b)(6). See N.C. Gen. Stat. § 1A-

1, Rule 12(b)(6).

V. Conclusion

We conclude that the trial court properly dismissed Plaintiff’s complaint

because all of Plaintiff’s causes of action are time barred.

AFFIRMED.

Judges TYSON and ARROWOOD concur.

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