Empire Contractors, Inc. v. Town of Apex: Individualized Valuation and Rough-Proportionality Inquiries Defeat Predominance in Class Actions Challenging Development Fees

I. Introduction

In Empire Contractors, Inc. v. Town of Apex, the Supreme Court of North Carolina vacated an order certifying a plaintiff class in a challenge to municipal “recreation fees” imposed on subdivision developers. While the underlying merits concern the legality and constitutionality of those development fees, the decision is centrally about class certification standards—in particular, the predominance requirement—and how individualized factual issues can preclude certification even in a declaratory judgment action.

The case also flags an important, emerging tension for complex litigation in North Carolina: when only some legal theories can be litigated on a class-wide basis, trial courts must wrestle with the common-law prohibition on claim-splitting in evaluating whether a class action remains the “superior” method of adjudication. A separate concurrence further signals constitutional vulnerability in municipal fee schemes that resemble general revenue-raising rather than closely tailored user exactions, invoking North Carolina’s robust protections for economic liberty.

The parties are:

• Plaintiff–Appellee: Empire Contractors, Inc., a subdivision developer challenging the Town of Apex’s recreation fees on behalf of a putative class of developers who paid similar fees.
• Defendant–Appellant: Town of Apex, a rapidly growing municipality that imposed recreation fees in lieu of (or in combination with) land dedications for parks and open space.

This commentary analyzes the opinion’s doctrinal contributions on class certification—especially predominance and superiority—its interaction with property and exactions law, and the broader implications for land use litigation and municipal fee practices in North Carolina.

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II. Summary of the Opinion

The Supreme Court held that the class certified by the trial court improperly included claims that turn on highly individualized factual determinations, notably:

• the fair market value of the land each developer would otherwise have been required to dedicate; and
• whether each development’s recreation fee was “roughly proportional” to its specific impact on the Town’s parks and recreation system.

Because resolving those issues would require separate evidence and individualized adjudications for each class member—effectively causing the case to “degenerate into a series of mini-trials”—the Court concluded that the predominance requirement for class certification was not satisfied. It therefore:

• Vacated the order granting class certification.
• Remanded for a new class certification analysis limited to those claims that do not require individualized fact-finding.
• Instructed the trial court on remand to consider whether certifying only some claims—while leaving others to individual suits—creates claim-splitting and preclusion concerns that might undermine the superiority of the class mechanism.

The Court also clarified the standard of review:

• Whether common issues predominate is a question of law, reviewed de novo.
• Whether a class action is a “superior” method of adjudication remains a discretionary determination, reviewed for abuse of discretion.

Justice Berger concurred, joining the majority but underscoring serious constitutional concerns if the Town’s practice of collecting and commingling recreation fees amounts to using a development exaction as a disguised general revenue device. He invoked the North Carolina Constitution’s protection of the “fruits of their own labor” and due process (“law of the land”), labeling the scheme “legal plunder” if the allegations are true.

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III. Factual and Procedural Background

A. Statutory Framework for Subdivision Recreation Requirements

Under N.C.G.S. § 160D-801, local governments may regulate subdivision of land within their jurisdiction. A key implementing provision, N.C.G.S. § 160D-804(d), allows municipalities and counties to:

• require subdivision developers to dedicate or reserve land for recreation areas serving residents of the immediate neighborhood; or
• accept, in lieu of dedication, the payment of funds to be used to acquire or develop recreation areas serving the development or multiple developments “within the immediate area.”

By default, any fee in lieu of dedication must be calculated on a formula “based on the value of the development or subdivision for property tax purposes.”

Here, however, a local act specific to Apex modified that rule:

The Town of Apex may impose a recreation fee not based on property tax value, so long as the fee does not “exceed the fair market value of the land area that would have otherwise been required to be dedicated.” Act of June 21, 1996, ch. 722, § 1, 1995 N.C. Sess. Laws 408, 408.

Apex enacted an ordinance implementing this authority and began collecting recreation fees from subdivision developers under that regime.

B. Empire’s Subdivision and the Recreation Fee

In 2017, Empire Contractors sought approval for a 20-home subdivision—Goldenview Acres—in the Town of Apex. Empire alleges:

• The Town required traditional subdivision concessions, including a greenway easement and open space areas.
• In addition, the Town charged a recreation fee of $64,438 as a condition of subdivision plan approval.
• The Town then allegedly failed to use these fees to acquire or develop public recreation areas in the vicinity of Goldenview Acres, and instead commingled the funds with general Town revenues.

C. The Lawsuit and Theories of Illegality

Empire filed a putative class action seeking:

• a declaratory judgment that the Town’s recreation fee scheme is unlawful; and
• a refund of all illegally collected fees under N.C.G.S. § 160D-106, which authorizes refunds of development fees not authorized by law.

Empire advanced several legal theories, including:

1. Statutory cap violation (local act / fair market value) – The recreation fees allegedly exceed the statutory ceiling that they not exceed “the fair market value of the land area that would have otherwise been required to be dedicated.”
2. Failure to credit on-site dedication – N.C.G.S. § 160D-804(d) permits a combination of partial land dedication and partial fee. Empire contends Apex unlawfully charged full fees to developers even when they already dedicated or reserved recreation/open space areas for subdivision residents.
3. Improper use and location of fees – The statute requires that fees be used “only for the acquisition or development of recreation, park, or open space sites” in the “immediate area” of the contributing subdivision(s). Empire alleges the Town instead commingled fees with general revenue and did not direct them to the immediate area of the contributing developments.
4. Constitutional exactions claim – Relying on Anderson Creek Partners, L.P. v. County of Harnett, 382 N.C. 1 (2022), Empire alleges the fees are an unconstitutional condition because they are not “roughly proportional” to the costs of the particular development’s impact on parks and recreation facilities.

D. Class Certification Order

The trial court certified a class of all persons who paid recreation fees to the Town of Apex beginning in November 2017. It identified four common declaratory issues:

1. Whether the fees violate § 160D-804(d) because class members also dedicate/ reserve recreation or open space in their subdivisions.
2. Whether the fees violate § 160D-804(d) and the Town’s Charter because the fee amount is not based on the property’s fair market value at the time of initial application.
3. Whether the fees violate § 160D-804(d) because they are not used in the immediate area of the contributing subdivision or for that subdivision’s particular benefit.
4. Whether the fees are an unconstitutional condition because they are not “roughly proportional” to the impact of the development on the Town’s parks and recreation facilities.

The court also identified a common follow-on question: if any of the above violations are established, whether all class members are entitled to refunds under § 160D-106, plus statutory interest.

The Town appealed directly to the Supreme Court under N.C.G.S. § 7A-27(a)(4), which allows immediate appeals from certain class certification orders.

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IV. Detailed Summary of the Court’s Holdings

A. Standard of Review for Class Certification

The Court refined the standard-of-review framework by disaggregating:

• Legal prerequisites to class certification (reviewed de novo), from
• Discretionary implementation choices within the certification process (reviewed for abuse of discretion).

Citing Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 369 N.C. 202 (2016), Crow v. Citicorp Acceptance Co., 319 N.C. 274 (1987), and Jackson v. Home Depot U.S.A., Inc., 388 N.C. 109 (2025), the Court confirmed:

• The existence and predominance of common issues (“commonality” and “predominance”) are legal questions subject to de novo review.
• Other legal prerequisites—adequacy of representation, absence of conflicts, numerosity, and feasibility of notice—are likewise legal issues, reviewed de novo.
• By contrast, matters such as:
  • the form and manner of notice,
  • how to manage or structure the class in light of potential conflicts, and
  • whether a class action is the “superior” method of adjudication,
  are discretionary and reviewed only for abuse of discretion.

Applying that framework:

• The Town’s argument that individualized issues overwhelm common ones triggers de novo review of predominance.
• The Town’s challenge to the trial court’s superiority finding would be reviewed for abuse of discretion—but the Court ultimately did not reach that issue because the predominance failure was dispositive.

B. Predominance: Individualized Valuation and Rough-Proportionality Defeat Class-Wide Treatment

Predominance requires that common questions of law or fact outweigh and overshadow individualized issues. The Court reiterated that class certification is inappropriate where individualized, fact-intensive determinations would cause the action to “degenerate into a series of mini-trials.” (Jackson).

Two of Empire’s core theories were fatal under this standard:

1. Fair Market Value Cap (Local Act)
   The local act allows Apex to charge a recreation fee that is not based on property tax value so long as it does not “exceed the fair market value of the land area that would have otherwise been required to be dedicated.”
   • To determine whether a particular developer’s fee “exceeded” this cap, a court must ascertain the fair market value of the particular land that developer would otherwise have dedicated.
   • Valuation of real property is, as the Court emphasized, an “intensely individualized, fact-specific endeavor”, citing Dep’t of Transp. v. M.M. Fowler, Inc., 361 N.C. 1 (2006).
   • This parallels Beroth Oil Co. v. N.C. Dep’t of Transp., 367 N.C. 333 (2014), where class certification was denied because each property owner subject to Map Act restrictions was entitled to present detailed valuation evidence to a factfinder in seeking just compensation.
   The Court held that, as in Beroth Oil, each putative class member here would have a right to a parcel-specific valuation contest. Those individualized trials would overwhelm any common legal questions, defeating predominance.
2. Constitutional “Rough Proportionality” Claim
   Under Anderson Creek Partners, L.P. v. County of Harnett, development exactions must bear an “essential nexus” and be “roughly proportional” to the impact of the specific development on public infrastructure—in this case, parks and recreation facilities.
   • This inquiry is inherently fact-intensive and development-specific: what is the particular impact of a given subdivision on recreation demand, and how does the fee amount compare to that impact?
   • The Court noted that in Anderson Creek, parties must be allowed to conduct discovery and present evidence on these impacts.
   • Again, each developer would be entitled to litigate its own proportionality assessment; the Town, similarly, would be entitled to respond with individualized evidence.
   Because each class member’s constitutional exaction claim requires its own factual mini-trial, these individualized inquiries also defeat predominance.

In combination, including these theories within a single class caused individualized factual issues to dominate the litigation. Accordingly, the class as certified could not satisfy the legal predominance requirement, and the certification order had to be vacated.

C. Superiority and Claim-Splitting: Issues for Remand

Having vacated the class certification order on predominance grounds, the Court did not resolve the Town’s challenge to the trial court’s finding that a class action was the “superior” method of adjudication.

However, the Court directed the trial court to address a new complication on remand: fracturing the case into class-eligible and non-class-eligible claims may create:

• Claim-splitting problems under North Carolina’s common-law rule against multiple suits arising from the same wrong; and
• Res judicata (claim preclusion) issues, potentially barring either:
  • class members from later bringing individual suits on non-class claims after resolution of the class claims, or
  • the class action itself if individual suits proceed and reach judgment first.

Citing Bockweg v. Anderson, 333 N.C. 486 (1993), and Gaither Corp. v. Skinner, 241 N.C. 532 (1955), the Court emphasized that a final judgment bars not only claims actually litigated, but also those that could have been brought with due diligence in the prior action.

The Court also referenced federal and sister-state examples (In re Teflon Prods. Liab. Litig., In re Methyl Tertiary Butyl Ether Prods. Liab. Litig.) where such claim-splitting concerns complicated class treatment.

Thus, on remand, the trial court must:

• Identify which of Empire’s declaratory claims do not require individualized fact-finding and might still be amenable to class certification.
• Assess whether pursuing only those claims in a class action, leaving the valuation and rough-proportionality claims to individual suits, would:
  • risk precluding later individual suits; or
  • render a class action no longer superior to other methods of adjudication in light of those risks and the fragmented litigation structure.

The Supreme Court deliberately declined to decide the claim-splitting question without input from the parties, but flagged it as a critical component of the superiority analysis going forward.

D. The Concurring Opinion: Economic Liberty and “Legal Plunder”

Justice Berger concurred fully with the majority, but penned a separate opinion to spotlight an issue the majority did not resolve: the constitutionally suspect nature of the Town’s fee practices if Empire’s allegations prove accurate.

Key points of the concurrence:

• North Carolina’s Constitution protects:
  • the “enjoyment of the fruits of their own labor” (N.C. Const. art. I, § 1), and
  • property and liberty from deprivation except by the “law of the land” (art. I, § 19).
• The concurrence stresses a long tradition of jealous protection of property rights, quoting In re Harris Teeter, LLC, 378 N.C. 108 (2021) (Berger, J., dissenting).
• Economic regulations must be “reasonably necessary to promote the accomplishment of a public good, or to prevent the infliction of a public harm,” per Kinsley v. Ace Speedway Racing, Ltd., 386 N.C. 418 (2024), and plaintiffs can rebut alleged public purposes by proving a different, unstated purpose.
• If the Town collected fees on the representation that they would be used for recreation facilities near the developments, but then simply hoarded or commingled the funds as general revenue, this could amount to:
  • an arbitrary interference with the right to earn and enjoy the fruits of one’s own labor (citing King v. Town of Chapel Hill, 367 N.C. 400 (2014)), and
  • a form of “legal plunder”—appropriating private property ostensibly for a benign or philanthropic purpose while failing to deliver the promised public use.

The concurrence characterizes such a scheme as leveraging a narrow statutory authorization for recreation exactions into a de facto general revenue device, which “cannot be a permissible interference with economic liberty” if proven. The rhetorical flourish—“here, the emperor truly has no pickleball courts”—emphasizes a gap between what was promised (recreation improvements) and what was allegedly delivered (none).

Though not binding on the merits of the fee’s legality, the concurrence signals heightened judicial skepticism toward:

• development exactions that function more like taxes without political transparency, and
• municipal misuse or hoarding of earmarked development fees.

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V. Precedents and Authorities Cited

A. Jackson v. Home Depot U.S.A., Inc., 388 N.C. 109 (2025)

Jackson is the Court’s primary modern reference on predominance. It explains that:

• Class certification is proper only when common issues of law or fact predominate over individual ones.
• Even with common issues present, certification fails where the action would “degenerate into a series of mini-trials” due to individualized, fact-specific determinations.
• Some individualized issues can be accommodated if there is an efficient, class-wide method of resolving them, but fact questions requiring individualized evidence and separate findings for each class member typically defeat predominance.

In Empire Contractors, the Court imports this framework and applies it to:

• parcel-by-parcel valuation of land, and
• development-by-development rough-proportionality assessments.

B. Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 369 N.C. 202 (2016)

Fisher clarified that although the ultimate decision to certify a class is discretionary, several component determinations—such as whether class prerequisites are met—are legal questions reviewed de novo. Empire Contractors builds on Fisher by clearly categorizing predominance and other threshold requirements as legal.

C. Crow v. Citicorp Acceptance Co., 319 N.C. 274 (1987)

Crow is foundational for North Carolina class actions. It:

• Articulated many of the judicially created class requirements (adequacy, conflicts, numerosity, notice feasibility).
• Held that the manner and form of notice are largely within the trial court’s discretion.
• Recognized the superiority inquiry as a discretionary matter left to the trial court, subject to abuse-of-discretion review.

Empire Contractors aligns with Crow in treating superiority as discretionary while recognizing the threshold existence of certain requirements as legal.

D. Beroth Oil Co. v. N.C. Dep’t of Transp., 367 N.C. 333 (2014)

Beroth Oil involved class claims by property owners whose land was burdened by Map Act corridor recordings. The Court denied class certification because:

• Each owner’s claim for just compensation depended on the fair market value of the specific property and the impact of the Map Act on that value.
• Each owner had the right to present individualized valuation evidence to a factfinder, making class-wide adjudication impractical.
• Thus, individualized factual issues far outnumbered common issues, defeating predominance.

In Empire Contractors, the Court explicitly analogizes the case to Beroth Oil, deeming individualized fair market value inquiries equally fatal to predominance.

E. Anderson Creek Partners, L.P. v. County of Harnett, 382 N.C. 1 (2022)

Anderson Creek imported into North Carolina the constitutional standards governing exactions: there must be an “essential nexus” and “rough proportionality” between the exaction imposed and the impact of the development on public infrastructure or services.

In Empire Contractors, this precedent frames Empire’s constitutional theory: the recreation fees must be roughly proportional to the impact of each subdivision on Apex’s parks and recreation system. The Court notes that such an inquiry is:

• Highly fact-specific; and
• Requires parties to conduct discovery and present evidence on development-specific impacts.

Consequently, Anderson Creek’s methodology, when applied to a putative class, underscores the predominance of individualized fact questions.

F. Surgeon v. TKO Shelby, LLC, 385 N.C. 772 (2024)

Surgeon is cited for the practice of remanding class certification orders when a threshold issue (like predominance) is resolved, with the Court noting that arguments about superiority may be mooted by a new order. Empire Contractors follows that approach by deferring the superiority question and highlighting new complexities for the trial court on remand.

G. Bockweg v. Anderson, 333 N.C. 486 (1993) and Gaither Corp. v. Skinner, 241 N.C. 532 (1955)

These cases articulate North Carolina’s rule against claim-splitting:

• Parties generally must litigate all claims arising from a single wrong in one action.
• A final judgment extends by res judicata not only to issues actually decided but to those that could have been raised with due diligence.

Empire Contractors invokes this principle to caution that litigating some theories in a class action and others individually may trigger preclusion problems—an issue that will now be central to the superiority analysis on remand.

H. King v. Town of Chapel Hill, 367 N.C. 400 (2014); Kinsley v. Ace Speedway Racing, Ltd., 386 N.C. 418 (2024); In re Harris Teeter, LLC, 378 N.C. 108 (2021) (Berger, J., dissenting)

These authorities, discussed in the concurrence, frame North Carolina’s robust protection of economic liberty and property rights:

• King emphasizes the Court’s duty to prevent arbitrary government actions interfering with the right to the “fruits of one’s own labor.”
• Kinsley requires that regulations burdening economic activity be “reasonably necessary” for a legitimate public purpose, with plaintiffs permitted to rebut the asserted purpose.
• Harris Teeter (dissent) underscores the historical centrality of property rights and skepticism toward government takings.

These cases supply the conceptual foundation for Justice Berger’s criticism of municipal fee schemes that collect money under the guise of recreation funding but allegedly fail to deliver matching public benefits.

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VI. Legal Reasoning and Doctrinal Analysis

A. The Predominance Inquiry as a Legal Question

One core contribution of Empire Contractors is its explicit classification of the predominance requirement as a question of law subject to de novo review

• Appellate courts can independently assess whether the trial court’s identification and weighing of common versus individualized issues satisfies the legal standard.
• Trial courts must carefully articulate the nature of the individualized issues and explain how (or whether) they can be efficiently resolved on a class-wide basis.
• Legal advocates must build a record that highlights the structure of factual variation across class members, not merely the existence of a common legal question (here, the legality of a single ordinance and fee program).

The Court reinforces that a single municipal policy does not by itself guarantee predominance when application of that policy to each plaintiff requires sharply individualized proof.

B. Individualized Issues in Empire’s Claims

1. Fair Market Value Ceiling Under the Local Act

The local act governing Apex allows a recreation fee not based on tax value, provided the fee does not “exceed the fair market value of the land area that would have otherwise been required to be dedicated.” That language embeds a developer-specific comparative valuation:

• What parcel (or portion of land) would each developer have had to dedicate?
• What was that parcel’s fair market value at the relevant time?
• How does that value compare to the fee actually imposed?

The Court underscores that fair market value in real property is determined through:

• expert appraisals,
• comparable sales,
• highest and best use analyses,
• parcel-specific characteristics (location, zoning, topography, access), and
• market conditions at specific points in time.

Because each developer would be entitled to present its own evidence and challenge the Town’s valuation evidence, each claim under this theory looks like a mini-condemnation trial. That type of granular, parcel-specific litigation cannot be streamlined into a truly class-wide proceeding without sacrificing procedural rights or accuracy.

2. “Rough Proportionality” Exaction Challenge

The constitutional exaction claim, grounded in Anderson Creek Partners, requires that:

• the Town’s recreation fee have a logical, “essential” connection to a legitimate public purpose (nexus), and
• the fee’s magnitude be “roughly proportional” to the incremental impact of the specific development on the Town’s parks and recreation facilities.

To litigate this, each side must examine, for each development:

• Expected population or usage effects.
• Existing capacity and condition of nearby recreation facilities.
• Planned expansions or improvements attributable to the development.
• How the fee amount was set in light of these factors.

These questions are inherently project-specific. Even if the Town used a uniform fee formula (per lot or per unit), the constitutional inquiry asks whether applying that formula to this development leads to a fee amount that is roughly proportional to this development’s impact. That structure all but guarantees individualized fact-finding.

The Court thus treats the exaction claim analogously to the valuation claim: both require individualized proof and fact-finder determinations, which predominate over any common legal questions about the ordinance itself.

C. Which Claims Might Be Class-Eligible?

The opinion suggests—but does not definitively decide—that some of Empire’s statutory claims might be more amenable to class treatment because they involve program-wide practices rather than development-specific valuations.

Candidates for class certification on remand may include:

1. Failure to credit on-site recreation/open space dedication
   If Empire can show that the Town had a uniform practice of:
   • requiring land dedication (e.g., greenways, open space), and
   • charging full recreation fees without any systematic credit or adjustment for that dedication,
   the central issue may be a legal one: whether § 160D-804(d) permits extracting both full dedication and full fee (“double exaction”) for the same recreation purpose. That question could be resolved class-wide, though some measurement of dedications might still introduce individual variation.
2. Improper use and location of fees (immediate area requirement)
   If Apex systematically commingled all recreation fees with general revenue and did not actually track or invest fees in the “immediate area” of paying subdivisions, the legality of this global practice may present a common question, with minimal individualized factual differences.

On remand, trial courts will need to dissect these theories and evaluate:

• To what extent resolving them depends on class-wide evidence of uniform practices, versus
• property- or development-specific facts (such as the actual location of improvements relative to each subdivision).

D. Superiority, Fragmentation, and Claim-Splitting

The Court’s discussion of claim-splitting adds a new layer of sophistication to the superiority analysis in North Carolina class actions.

If on remand the trial court finds that:

• some of Empire’s declaratory claims could be litigated for the class (e.g., uniform misuse of fees), but
• other claims (valuation, proportionality) must be litigated individually,

then two paths emerge:

1. Proceed with a partial class action on the class-eligible theories, with individual follow-on actions for the remaining claims.
2. Reject class certification entirely, concluding that the fragmented structure and preclusion risks make individual (or consolidated) suits superior.

Because North Carolina law precludes piecemeal litigation of claims arising from the same transaction or wrong, a judgment in the class action could:

• bar class members from later asserting individual valuation or constitutional claims that “could have” been joined, or
• be precluded by earlier individual suits if some developers proceed on their own first.

This creates a substantial risk that class members will unintentionally forfeit or complicate other viable claims. Part of the trial court’s job on remand is to determine whether:

• those risks can be mitigated (e.g., by tailoring the class definition, notices, or claims), or
• they are so significant that a class action no longer provides a clearly superior path compared to individualized proceedings, potentially including consolidated or coordinated trials under existing civil procedure mechanisms.

E. The Concurrence’s Economic Liberty Lens

While not controlling, the concurrence’s economic-liberty framework may influence future litigation and judicial attitudes toward municipal fee programs:

• It frames the Town’s alleged conduct as more than a technical misapplication of § 160D-804(d); instead, it suggests the scheme might be a substantive constitutional violation if fees were collected under the guise of targeted recreation improvements but effectively used as general revenue.
• It reinforces that North Carolina does not treat economic regulation as immune from meaningful scrutiny; plaintiffs can challenge not just the fit between means and ends, but the genuineness of the stated public purpose.
• It compares the alleged scheme to “legal plunder,” highlighting the tension between local fiscal innovation and core property rights.

This commentary may embolden future challenges where:

• impact fees are collected but left unspent or diverted;
• the nexus between the fee and the promised public improvement is thin;
• municipalities attempt to fund general infrastructure through targeted exactions without political transparency of general taxation.

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VII. Impact and Implications

A. For Class Actions in North Carolina

1. Declaratory Actions Are Not Automatically Class-Friendly
   Even when plaintiffs seek primarily declaratory relief against a single ordinance or policy, predominance can fail if the underlying legal theories require individualized fact-finding. Plaintiffs must carefully choose which theories to advance on a class-wide basis.
2. Valuation and Proportionality Claims Are Structurally Difficult to Certify
   Claims involving:
   • individual property valuation (fair market value), or
   • “rough proportionality” analysis for exactions,
   will almost always face serious predominance challenges because each claim entails a mini-trial. Class counsel may need to:
   • limit class claims to more categorical or procedural violations; or
   • forego class treatment where individualized damages or constitutional inquiries are central.
3. Claim-Splitting Now Explicitly Matters in Superiority Analysis
   Trial courts must consider whether:
   • partial class certification,
   • sequenced class and individual litigation, or
   • hybrid approaches
   create unacceptable preclusion risks. This pushes practitioners to design litigation strategies with res judicata explicitly in mind.
4. Appellate Review of Predominance Is Robust
   By classifying predominance as a legal question, the Court has signaled that it will closely scrutinize trial courts’ predominance determinations, particularly in complex, high-stakes cases.

B. For Municipal Development Fees and Land Use Regulation

1. Use and Tracking of Fees Must Match Statutory Purposes
   Municipalities that collect impact or recreation fees under § 160D-804(d) must:
   • use them solely to acquire or develop parks/recreation/open space,
   • ensure that use is within the “immediate area” of the developments that paid, and
   • avoid commingling with general funds in a way that obscures compliance.
   Failure to do so invites both statutory and constitutional challenges.
2. Local Acts with Fee Caps Are Not Merely Formalities
   Local enabling acts that cap fees at the “fair market value” of forgone dedication require:
   • credible valuation frameworks, and
   • development-specific analysis of comparable land value.
   Municipalities cannot simply pick a uniform fee schedule untethered from real property values and expect that cap to be satisfied automatically.
3. Exactions Must Be Carefully Calibrated to Impacts
   Exactions jurisprudence (per Anderson Creek) applies forcefully here:
   • Fees must be tied to the incremental burden a development places on the park system.
   • Even if the policy goal is laudable (more recreation facilities), exactions that overshoot the development’s proportional impact may be unconstitutional.
   Municipalities should develop robust, transparent impact methodologies to justify fee schedules.

C. Strategic Considerations for Litigants

• Plaintiffs and Class Counsel:
  • Must distinguish between:
    • programmatic challenges (e.g., global misuse of fees), and
    • case-specific claims (valuation, proportionality).
  • Should consider whether to:
    • pursue a narrower class action limited to class-amenable theories, and
    • abandon or reserve individualized theories for separate suits, with full awareness of preclusion risks.
• Municipal Defendants:
  • Can resist class certification by documenting factual variations among developments:
    • different subdivision sizes, locations, amenities;
    • variability in land values;
    • distinct patterns of park usage and improvements.
  • Should ensure rigorous recordkeeping showing:
    • how fees are calculated in each case, and
    • where and how they are ultimately used.

D. Broader Constitutional Trajectory

The concurrence’s rhetoric and citations suggest a judicial climate that is:

• skeptical of opaque fiscal mechanisms that offload public costs onto discrete groups (like developers) without clear, proportionate benefits; and
• willing to deploy North Carolina’s distinctive economic-liberty guarantees as a check on such practices.

Future challenges to impact fees, special assessments, and similar devices may increasingly frame their arguments not only in statutory and federal takings terms, but also under:

• Article I, § 1: “fruits of their own labor”; and
• Article I, § 19: “law of the land” due process.

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VIII. Simplifying Key Legal Concepts

A. Class Certification, Commonality, and Predominance

• Class certification allows one or more plaintiffs to sue on behalf of a larger group with similar legal claims.
• Commonality means there are questions of law or fact that are the same for all class members (e.g., the validity of a single ordinance).
• Predominance means those common questions are more important than, and not overwhelmed by, differences in individual facts (e.g., how much each person was harmed, what each parcel is worth).

If resolving the case requires separate, detailed inquiries into each person’s situation, common issues do not predominate.

B. Superiority

The superiority requirement asks whether a class action is a better method than individual lawsuits to fairly and efficiently resolve the controversy. Courts consider:

• how many people are affected,
• whether individual claims are small or large,
• whether common questions dominate, and
• whether other options (like individual or consolidated suits) might work as well or better.

C. Declaratory Judgment

A declaratory judgment is a court ruling that clarifies the rights and legal status of parties without necessarily awarding damages or ordering specific action. Here, Empire sought a declaration that the Town’s recreation fees are illegal, which, if obtained, would then support statutory refund remedies.

D. Fair Market Value

Fair market value is the price a willing buyer would pay a willing seller for property, with both under no compulsion and having reasonable knowledge of the relevant facts. Determining fair market value ordinarily requires:

• expert appraisal,
• analysis of comparable sales, and
• consideration of property-specific characteristics.

Because these factors vary for each parcel, valuation disputes tend to be highly individualized.

E. Constitutional Exactions: “Essential Nexus” and “Rough Proportionality”

When the government conditions development approval on paying money or dedicating land (an “exaction”), constitutional doctrine requires:

• Essential nexus: The exaction must be logically connected to a legitimate public interest (e.g., requiring a park contribution because a new subdivision increases demand for parks).
• Rough proportionality: The amount of the exaction must be roughly in line with the extent of the development’s impact (e.g., not charging a small development a fee equal to the cost of an entire city park).

These standards ensure that governments do not use permit conditions to extract more than a fair share of infrastructure costs from individual landowners.

F. Claim-Splitting and Res Judicata

Claim-splitting occurs when a party sues in multiple actions on different legal theories arising from the same underlying set of facts or wrong. North Carolina, like most jurisdictions, generally prohibits claim-splitting.

Under res judicata (claim preclusion), once a court enters a final judgment, the parties cannot relitigate:

• the same claims, or
• other claims that could have been raised in that action with reasonable diligence.

In class actions, this means a judgment on some theories may bar absent class members from later bringing related theories that they did not assert in the class case.

G. Economic Liberty and “Fruits of Their Own Labor”

Article I, § 1 of the North Carolina Constitution declares that people have inalienable rights including “life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” This clause protects:

• the right to engage in lawful occupations and business, and
• the right not to have one’s earnings or property arbitrarily taken or burdened by the government.

Article I, § 19 (“law of the land”) is North Carolina’s due process clause, prohibiting deprivation of life, liberty, or property except under fair, general, and non-arbitrary laws.

Together, these provisions support judicial scrutiny of government schemes that appear to extract money from individuals without adequate public justification or in a way that disguises taxes as “fees.”

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IX. Conclusion

Empire Contractors, Inc. v. Town of Apex is a pivotal decision at the intersection of class action procedure, land use regulation, and constitutional property rights in North Carolina. The Supreme Court held that class certification cannot stand where central theories of liability require individualized valuation and rough-proportionality assessments for each class member, as those inquiries cause individualized issues to clearly predominate.

On remand, the trial court must dissect Empire’s claims, potentially certifying only those that can be resolved through genuinely common proofs—while grappling with the claim-splitting and res judicata risks that such fragmentation poses. This elevates the sophistication required in designing and evaluating class actions, particularly in complex regulatory and land use disputes.

The concurrence further underscores that, beyond procedural structuring, the substantive constitutionality of municipal fee regimes remains very much in play. Municipalities utilizing development exactions must ensure both strict statutory compliance and a firm grounding in economic-liberty and due process principles, lest their fee schemes be deemed “legal plunder” rather than legitimate, proportionate public financing tools.

In sum, Empire Contractors stands as a critical precedent:

• clarifying the legal nature of predominance and the high bar for certifying classes where individualized factual disputes are central;
• highlighting the role of claim-splitting and preclusion in assessing the superiority of class actions; and
• signaling a continuing judicial readiness to scrutinize municipal exactions under North Carolina’s robust protections for property and economic liberty.