February 1, 1994
Mr. Leon M. Killian, III Haywood County Attorney
P.O. Drawer 1260 Waynesville, NC 28786
Re: Advisory Opinion; N.C.G.S. 153A-301(d); N.C.G.S. § 153A-149(c); County Service District
Road Maintenance
Dear Mr. Killian:
The following is in response to your request for an opinion concerning Chapter 378 of the 1993
Session Laws. That legislation authorizes the creation and taxation of a service district by a board
of county commissioners for the maintenance of certain roads in counties that contain a protected
mountain ridge as defined in N.C.G.S. § 113A-206(6).
Chapter 378 amended N.C.G.S. § 153A-301 by adding a new subdivision (d) which reads as
follows:
"(d) The board of commissioners of a county that contains a protected mountain ridge, as defined
by G.S. 113A-206(6), may define any number of service districts to finance for the district the
maintenance of public roads that are located in the district, are not maintained by the Department
of Transportation, and were recorded on a plat in the register of deeds office before October 1,
1975. The service district or districts created shall include only property within such platted
subdivision and one or more additional contiguous platted subdivisions.”
Chapter 378 also amended N.C.G.S. § 153A-149(c) by adding a new subdivision (28a) to read as
follows:
"(c) Each county may levy property taxes for one or more of the purposes listed in this subsection
up to a combined rate of one dollar and fifty cents ($1.50) on the one hundred dollars ($100.00)
appraised value of property subject to taxation. Authorized purposes subject to the rate limitation
are: (1) . . .
(28a) Roads. – To provide for the maintenance of county roads as authorized by G.S. 153A301(d).”
The first question in your letter is:
"May the County define a service district to finance for the district the maintenance of public
roads that are located in the district and are not maintained by the Department of Transportation,
where the district consists of one or more platted subdivisions recorded before October 1, 1975
and one or more additional contiguous platted subdivisions platted after that date?”
It is the opinion of this office that a service district created under the provisions of N.C.G.S. §
153A-301(d) may not consist of subdivisions whose plats were recorded after October 1, 1975.
That opinion is based upon the following.
Chapter 378 was introduced as House Bill 604 and as introduced did not contain any language referring to "contiguous platted subdivisions". That language was added to the bill in a Senate Finance Committee Substitute adopted on July 14, 1993. As suggested by your question, the language of the Committee Substitute is ambiguous and can be interpreted to authorize either the creation of a district containing one or more contiguous platted subdivisions, all of which must have been recorded before October 1, 1975, or the language can be interpreted to authorize a district with at least one platted subdivision recorded prior to October 1, 1975 and additional contiguous platted subdivisions recorded either before or after October 1, 1975. A review of several other statutes is necessary in order to obtain an understanding of the role of counties with regard to the maintenance and construction of roads and an analysis of the issues raised in your letter.
The significance of the October 1, 1975 date arises from N.C.G.S. § 136-102.6, which provides that after October 1, 1975, before any lot can be sold by reference to a plat, the plat must be recorded and the roads must be designated as "public" or "private". Before a plat with "public" roads can be recorded, it needs to reflect approval by the Department of Transportation (DOT) signifying that the roads meet the minimum standards of DOT, and that the subdivision has been approved by a county or city with regard to any applicable land planning ordinance. The recording of a plat with roads designated as "public" constitutes an irrevocable offer of dedication to the public but the certificate of approval by DOT on the plat does not constitute acceptance by DOT of the offer of dedication. The statute also requires full disclosure of the meaning and consequences of a designation of the subdivision’s roads as "private".
. By enactment of N.C.G.S. § 136-98 the General Assembly decreed that after July 1, 1931 no county or road district shall levy any tax for the construction or maintenance of any public road, in effect, taking the counties out of the road business. In pertinent part that statute reads as follows:
"§ 136-98. Prohibition of local road taxes and bonds and construction of roads by local authorities; existing contracts.
From and after the first day of July, 1931, no county or road district by authority of any public, public-local, or private act shall levy any taxes for the maintenance, improvement, reconstruction, or construction of any of the public roads in the various and several counties of the State.
. . . No board of county commissioners nor county highway commission, nor district nor township highway commission from and after the passage of this section shall enter into any contract to build or construct roads in the various and several counties except for such projects as can be completed and paid for prior to July 1, 1931."
. . . Under the authority of N.C.G.S. § 153A-331 a county, in the exercise of its land planning authority, may adopt a subdivision ordinance setting out criteria for subdivisions, including the coordination of streets and highways within the subdivision. However, a county has no power under its land planning authority to levy taxes or to construct or maintain subdivision roads. The approval of a subdivision plat by a county does not constitute or effect an acceptance by the county of an offer of dedication of the streets shown on the plat, N.C.G.S. § 153A-333.
The role of the counties in regard to maintenance of roads was first changed by the General Assembly by the enactment of Chapter 620 of the 1989 Session Laws, which added new subsections (b) and (c) to N.C.G.S. § 153A-301 to allow counties along the coast to establish service districts for road maintenance and the removal of junk automobiles. Neither Chapter 620 of the 1989 Session Laws nor Chapter 378 of the 1993 Session Laws contains any express reference to N.C.G.S. § 136-98. However, it is quite clear that Chapter 378 is in conflict with
N.C.G.S. § 136-98 because it authorizes the levy of property taxes for the maintenance of roads within a mountain county road service district, which is expressly prohibited by N.C.G.S. § 136
98. Any conflict between statutes should be reconciled if possible; however because both the wording and intent of the provisions of both statutes are clearly at odds with each other the conflict cannot be reconciled. When two statutes are in conflict with each other the newer statute constitutes a repeal by implication of the older statute.
"Statutes dealing with the same subject matter will be harmonized, if possible, to give effect to each since the presumption is against repeal by implication. But where two statutes are in irreconcilable conflict, the statute first enacted must give way to the latter to the extent of the conflict, the last expression of the legislative will on the matter being the law."
12 Strong’s North Carolina Index 3rd, Statutes § 11.1 (1978).
Repeal by implication is not favored in the law, Commr. of Insurance v. Automobile Rate Office, 294 N.C. 60, 239 S.E.2d 48 (1977); D & W, Inc. v. Charlotte, 268 N.C. 577, 151 S.E.2d 241, supp. op. 268 N.C. 720, 152 S.E.2d 199 (1966). In light of the principle that repeal by implication is not favored, it follows that if language in the newer statute is susceptible to two interpretations then the narrower interpretation should be applied, thereby reducing the repealing effect of the newer statute. In the instant case, that leads to the conclusion that only subdivisions where the plat was recorded prior to 1975 are eligible to be included in a mountain county road service district.
In further support of that conclusion, it can be pointed out that subdivisions with plats recorded after October 1, 1975 are significantly different from subdivisions with plats recorded before that date because of the provisions of N.C.G.S. § 136-102.6, which require that the roads either meet the requirements for State maintenance or that there be a full disclosure of the consequences of a failure to meet those standards. Therefore, the demarcation date of October 1, 1975 is significant and not merely an arbitrary cutoff.
The second question in your letter is as follows:
"Does the reference in the statute to "public roads" include roads which have been offered for dedication but have not been accepted by any public authority for maintenance and are, therefore, not dedicated public roads under the definition of G.S. 153A-238(a), since caselaw seems to say that "dedication" requires some act of acceptance on the part of a governmental authority?"
Because N.C.G.S. § 153A-238(a) is relevant only with regard to a county’s authority to name a "road, street, highway, thoroughfare or other way of passage", it does not appear to be instructive on the issue of what the General Assembly meant by the term "public roads" in N.C.G.S. § 153A301(d).
In the context of N.C.G.S. § 153A-301(d), the use of the term "public roads" should be interpreted to refer to roads where there has been an offer of dedication to the public, i.e. roads within subdivisions that are eligible to be included within a service district, For roads in subdivisions where the plat was recorded prior to October 1, 1975, the issue of whether a road has been offered for dedication is based upon the common law. Whether roads within a particular subdivision have been offered for dedication will depend upon the circumstances relating to that subdivision.
"While proof of an offer of dedication is conditioned on evidence of the offeror’s intention to dedicate his property to public use, that intention may be shown in a variety of ways. (Not all of them need be in writing, however. A dedication is one of the few land transfers that may be made orally.) The intention to make an offer of dedication may be express, as when the offer is made by a written instrument executed for that very purpose. Subdivision control ordinances typically require the subdivider of property to place on the face of the subdivision plat a signed certificate stating that he dedicates the streets shown on the plat to public use. Such a certificate is currently the most common form of an express offer of dedication. The intention to make an offer of dedication may also be presumptive, with the owner estopped from denying that he had the requisite intention. This seems to be the principle underlying the form of offer–sale of a lot by reference to a subdivision plat–that was probably most common in the first half of this century. It probably also underlies those cases that hold that an intention may be evidenced by deed recitals recognizing the public’s rights in streets. Finally, the necessary intention may be implicit, demonstrated by various actions or lack of actions by the owner. An immense number of reported cases from other states discuss whether an implicit intention to dedicate has been shown, but very few North Carolina cases have turned on this question. In general it appears that an implicit intention may be demonstrated by: -The owner’s use of the putative street as a boundary in a deed, as long as the use was not for descriptive purposes only, -The owner’s affirmative acts respecting the property, -The owner’s acquiescence in the public’s use of the property, under circumstances indicating that the use was not permissive. When the intention, if it exists at all, is implicit, each case will turn on its own facts; there is little to say in a general way about such offers of dedication. Much the same is true of express offers." David M. Lawrence, Property Interests in North Carolina City Streets § 1.04 (1985).
Therefore, roads in a subdivision where the plat was recorded prior to October 1, 1975 which have not been accepted into the State Highway System or been accepted by a municipality, are eligible for inclusion into a mountain county road service district where there has been an express or implied offer of dedication to the public. The creation of the mountain road service district and the concomitant maintenance of the roads in the district would constitute acceptance by the county of the offer of dedication and the subdivision roads would then become public roads.
Finally, it is pointed out that this opinion assumes that Chapter 378 is not a local act within the meaning of Section 24(1)(c) of Article II of the North Carolina Constitution which prohibits local acts authorizing the maintenance of "highways, streets or alleys". This assumption is based on the belief that roads in counties with steep mountainous terrain may be significantly more costly to maintain and therefore, while Chapter 378 does not address all counties in the state, all counties to which it applies share the same need, McIntyre v. Clarkson, 254 N.C. 510, 119 S.E. 2d 888 (1961); Smith v. County of Mecklenburg, 280 N.C. 497, 187 S.E. 2d 67 (1972).
Charles J. Murray Special Deputy Attorney General
Ann Reed
Senior Deputy Attorney General